     09-5093-cr
     United States v. Kelly
 1                             UNITED STATES COURT OF APPEALS
 2                                 FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
11   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 26th day of October, two thousand ten.
17
18   PRESENT: JON O. NEWMAN,
19            RALPH K. WINTER,
20            GERARD E. LYNCH,
21                           Circuit Judges.
22
23   ------------------------------------------------------------------
24
25   UNITED STATES OF AMERICA,
26                           Appellee,
27
28                            v.                                               No. 09-5093-cr
29
30   THOMAS M. KELLY,
31                                            Defendant-Appellant.
32
33   --------------------------------------------------------------------
34
35   FOR APPELLANT:                   LAWRENCE H. SCHOENBACH, Law Offices of Lawrence
36                                    H. Schoenbach, New York, New York.
37
38   FOR APPELLEE:                    KATHERINE POLK FAILLA, Assistant United States
39                                    Attorney (Sarah Y. Lai, Assistant United States Attorney, on
40                                    the brief), for Preet Bharara, United States Attorney for the
41                                    Southern District of New York, New York, New York.
42
43              Appeal from the United States District Court for the Southern District of New York

44   (Denise L. Cote, Judge).
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Thomas H. Kelly appeals his conviction and sentence on one count of wire fraud. See

 4   18 U.S.C. § 1343. He argues that the district court erred by not warning him, when he pled

 5   guilty, that he might have to pay more restitution than the $50,571 he agreed to pay in his

 6   plea agreement. Accordingly, he asks that we vacate the district court’s order of $94,767 in

 7   restitution, or, in the alternative, vacate his guilty plea and conviction and allow him to

 8   proceed to trial. We assume the parties’ familiarity with the relevant facts, the procedural

 9   history of this case, and the issues presented on appeal.

10          Because Kelly did not make this objection below, he concedes that we may review

11   his claim only for plain error. See United States v. Dominguez-Benitez, 542 U.S. 74, 80

12   (2004). This standard requires Kelly to show (1) error, (2) that is “clear or obvious,” (3) that

13   affected his “substantial rights,” and (4) that affected “the fairness, integrity or public

14   reputation of judicial proceedings.” United States v. Marcus, __ U.S. __, 130 S. Ct. 2159,

15   2164 (2010) (quotation marks omitted).

16          We see no error here, and certainly none that is “clear or obvious.” The district court

17   satisfied its duty under Rule 11 by warning Kelly of “the court’s authority to order

18   restitution,” Fed. R. Crim. P. 11(b)(1)(K), and by further advising him that “[e]ven if your

19   sentence is different from what your attorney or anyone else told you it might be, even if it’s

20   different from what is calculated in a written agreement that you have with the government,


                                                    2
 1   you are still going to be bound by your plea of guilty and cannot withdraw your plea of

 2   guilty,” see id. 11(c)(3)(B). Both times, Kelly responded that he understood.

 3          The record also shows that Kelly made his plea knowingly, “with sufficient awareness

 4   of the relevant circumstance and likely consequences.” Brady v. United States, 397 U.S.

 5   742, 748 (1970). The plea agreement, which Kelly acknowledged that he read, discussed

 6   with counsel, and understood, stated that “it is understood that the sentence to be imposed

 7   on the defendant is determined solely by the Court.” Kelly also agreed “not to appeal any

 8   restitution order that is equal or less than $50,571,” suggesting by negative implication that

 9   the court might require restitution in a higher amount. At the plea hearing, the district court

10   repeatedly emphasized: “if your attorney or anyone else has attempted to predict to you what

11   your sentence will be, . . . their prediction could be wrong” and “[n]o one – not your lawyer,

12   not the government’s lawyer – no one can give you any assurance of what your sentence will

13   be, because I’m going to decide it.” Again, Kelly responded that he understood.

14          Finally, even if we saw error here, Kelly cannot show that it affected his “substantial

15   rights,” because he cannot show “a reasonable probability that, but for the error, he would

16   not have entered the plea.” Dominguez-Benitez, 542 U.S. at 83. Three days before the

17   district court sentenced Kelly, it stated that it was considering imposing a higher amount of

18   restitution and that it did not feel bound by the number in the agreement. Kelly sought the

19   lower restitution amount in the plea agreement, but did not attempt to withdraw his plea. He

20   cannot, therefore, meet the plain error standard. See United States v. Vaval, 404 F.3d 144,

21   152 (2d Cir. 2005).

                                                   3
1   For the foregoing reasons, the judgment is AFFIRMED.

2
3                            FOR THE COURT:
4                            Catherine O’Hagan Wolfe, Clerk of Court
5




                                      4
