     15-751-cr
     United States v. DiBiase (Paul)

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of May, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RALPH K. WINTER,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-751-cr
16
17       PAUL DIBIASE,
18                Defendant-Appellant,
19
20       DANIEL DIBIASE,
21                Defendant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLEE:                         Benjamin Allee, Karl Metzner,
25                                             Assistant United States
26                                             Attorneys, for Preet Bharara,
27                                             United States Attorney for the


                                                  1
 1                              Southern District of New York,
 2                              New York, New York.
 3
 4   FOR APPELLANT:             Daniel M. Perez, Law Offices of
 5                              Daniel M. Perez, Newton, New
 6                              Jersey.
 7
 8                              Paul DiBiase, pro se, Butner,
 9                              North Carolina (supplemental and
10                              reply briefs).
11
12        Appeal from an amended judgment of the United States
13   District Court for the Southern District of New York (Ramos,
14   J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the amended judgment of the district court
18   be AFFIRMED.
19
20        Paul DiBiase appeals from the amended judgment of
21   conviction following his guilty plea in the United States
22   District Court for the Southern District of New York (Ramos,
23   J.), for crimes related to a string of home invasion
24   robberies and burglaries. Pursuant to a plea agreement,
25   DiBiase pled guilty to racketeering conspiracy in violation
26   of 18 U.S.C. § 1962(d) (Count One) and being a felon in
27   possession of a firearm as an Armed Career Criminal in
28   violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Two).
29   DiBiase was sentenced to a total of 324 months’ imprisonment
30   (240 months on Count One, and 324 months on Count Two, to
31   run concurrently). We assume the parties’ familiarity with
32   the underlying facts, the procedural history, and the issues
33   presented for review.
34
35        DiBiase’s plea agreement stipulated that his Sentencing
36   Guidelines range was 292 to 365 months’ imprisonment, and he
37   agreed not to appeal any sentence within or below that
38   range. With limited exceptions, “[a] defendant’s knowing
39   and voluntary waiver of his right to appeal a conviction and
40   sentence within an agreed upon guideline range is
41   enforceable.” United States v. Pearson, 570 F.3d 480, 485
42   (2d Cir. 2009). Even a knowing and voluntary appellate
43   waiver may be unenforceable if the government breached the
44   plea agreement; if the sentence was based on ethnic, racial,
45   or other constitutionally-prohibited biases; or if the court
46   failed to communicate any rationale for the defendant’s


                                  2
 1   sentence. United States v. Gomez-Perez, 215 F.3d 315, 319
 2   (2d Cir. 2000).
 3
 4        1.  DiBiase argues that his plea as to Count Two was
 5   not knowing and voluntary because of two alleged violations
 6   of Federal Rule of Criminal Procedure 11(b). Since DiBiase
 7   did not object to the alleged violations below, the claim is
 8   reviewed for plain error.1 DiBiase cannot show error, much
 9   less satisfy the plain error standard.
10
11        First, as the district court determined, there was a
12   sufficient factual basis for DiBiase’s plea as to Count Two
13   (felon-in-possession): DiBiase confirmed the government’s
14   description of the offense conduct, including the use of a
15   firearm in connection with the home invasions; he described
16   the same in his own words; he attested that the firearm was
17   available to him during the course of the robberies; and he
18   admitted that he had prior felony convictions. See Fed. R.
19   Crim. P. 11(b)(3).
20
21        Second, the district court properly informed DiBiase
22   that a conviction on Count Two carried a fifteen-year
23   mandatory minimum term of imprisonment, pursuant to the
24   contemplated § 924(e) sentencing enhancement. See Fed. R.
25   Crim. P. 11(b)(1)(I) (the district court must inform
26   defendant of and ensure he understands “any mandatory
27   minimum penalty”). Assuming that, at sentencing, the
28   district judge agreed that DiBiase’s prior felonies
29   constituted ACCA predicates, that mandatory minimum would
30   apply. Contrary to DiBiase’s argument, it would have been
31   error under the circumstances for the district court not to
32   ensure that DiBiase was aware of this mandatory minimum, so
33   that his decision to plead guilty was fully informed.2


         1
           “Plain error review requires a defendant to
     demonstrate that ‘(1) there was error, (2) the error was
     plain, (3) the error prejudicially affected his substantial
     rights, and (4) the error seriously affected the fairness,
     integrity or public reputation of judicial proceedings.’”
     United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
     (quoting United States v. Flaharty, 295 F.3d 182, 195 (2d
     Cir. 2002)).
         2
           Furthermore, DiBiase cannot reasonably establish that
     but for being informed that a fifteen-year mandatory minimum
     applied he would not have pled guilty to Count Two. See
                                  3
 1        2.  DiBiase’s pro se supplemental and reply briefs
 2   argue principally that the government’s sentencing advocacy
 3   breached the plea agreement. “We review interpretations of
 4   plea agreements de novo and in accordance with principles of
 5   contract law.” United States v. Riera, 298 F.3d 128, 133
 6   (2d Cir. 2002). Ambiguities are resolved in the defendant’s
 7   favor. Id. “To determine whether a plea agreement has been
 8   breached, a court must look to what the parties reasonably
 9   understood to be the terms of the agreement . . . .” United
10   States v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999) (internal
11   quotation marks omitted).
12
13        The government agreed not to seek “an upward departure
14   from” the stipulated Guidelines range; but the plea
15   agreement permitted the government to “seek a sentence
16   outside” that range based upon the 18 U.S.C. § 3553(a)
17   factors, to recommend where within that range (or any other
18   range as determined by the district court) DiBiase should be
19   sentenced, and to present any facts relevant to sentencing.
20   App’x of Appellant at 27. The government’s sentencing
21   advocacy was entirely in keeping with this agreement.
22
23        3.  To the extent that DiBiase argues that he received
24   ineffective assistance of counsel in entering into the plea
25   agreement (or otherwise),3 we decline to address these
26   issues on direct appeal. DiBiase may raise these claims in
27   a collateral proceeding. See United States v. Oladimeji,
28   463 F.3d 152, 154 (2d Cir. 2006) (“Where the record on
29   appeal does not include the facts necessary to adjudicate a
30   claim of ineffective assistance of counsel, our usual
31   practice is not to consider the claim on the direct appeal,


     United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005).
     If anything, a defendant would be expected to be more
     likely, not less, to plead guilty in the absence of a
     mandatory minimum sentence. Furthermore, DiBiase received
     substantial benefits in exchange for his guilty plea: The
     government dropped one charged firearms count and forwent
     charging additional counts that together would have carried
     mandatory consecutive sentences of 30 years or more (on top
     of the sentence imposed on Counts One and Two).
         3
           See Parisi v. United States, 529 F.3d 134, 139 (2d
     Cir. 2008) (claim that attorney was ineffective in advising
     defendant to accept plea agreement survives appellate
     waiver).
                                  4
 1   but to leave it to the defendant to raise the claims on a
 2   petition for habeas corpus under 28 U.S.C. § 2255.”); United
 3   States v. Morgan, 386 F.3d 376, 383 (2d Cir. 2004).
 4
 5        4.  DiBiase’s challenges to the district court’s
 6   calculation of his Guidelines range and to his sentence are
 7   foreclosed by the appellate waiver, and we therefore do not
 8   reach them. See Morgan, 386 F.3d at 380-82.
 9
10        For the foregoing reasons, and finding no merit in
11   DiBiase’s other arguments, the amended judgment of the
12   district court is AFFIRMED.
13
14        The district court is DIRECTED to further amend the
15   amended judgment to correct a typographical error as to
16   Count Two. As indicated in this Summary Order, DiBiase
17   pleaded guilty to violating 18 U.S.C. §§ 922(g) and 924(e).
18   The amended judgment for that count cites “18 U.S.C.
19   § 924(c)(2)(A)(ii)”--a section that does not exist.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




                                  5
