14-258-cr
United States v. Pichardo

                                   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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 11th day of December, two thousand fourteen.

PRESENT:             DENNY CHIN,
                     SUSAN L. CARNEY,
                                         Circuit Judges,
                     ROBERT W. SWEET,
                                         District Judge.*
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UNITED STATES OF AMERICA,
                    Appellee,

                              v.                                                   14-258-cr

ENRIQUILLO ELIUD PENA PICHARDO,
AKA ENRIQUILLO PENA, AKA DAVID
GASCOT,
                    Defendant-Appellant.

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          *     The Honorable Robert W. Sweet, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR APPELLEE:                             NEGAR TEKEEI, Assistant United States
                                          Attorney (Anna M. Skotko, Assistant United
                                          States Attorney, on the brief), for Preet Bharara,
                                          United States Attorney for the Southern
                                          District of New York, New York,
                                          New York.

FOR DEFENDANT-APPELLANT:                  SAM A. SCHMIDT, Law Office of
                                          Sam A. Schmidt, New York, New York.

              Appeal from the United States District Court for the Southern District of

New York (Cote, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Defendant-appellant Enriquillo Eliud Pena Pichardo ("Pichardo") appeals

from a judgment of conviction, entered January 13, 2014, following a guilty plea to one

count of passport fraud, in violation of 18 U.S.C. § 1542, and one count of aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). After pleading guilty but before

sentencing, Pichardo moved to withdraw his plea to Count 2, aggravated identify theft.

In an opinion and order filed November 13, 2013, the district court denied the request,

and it subsequently sentenced Pichardo to a term of nine months' imprisonment on

Count 1 and twenty-four months' imprisonment on Count 2, to run consecutively. On

appeal, Pichardo challenges the district court's denial of his motion to withdraw his

guilty plea. We assume the parties' familiarity with the facts, procedural history, and

issues on appeal, which we reference only as necessary to explain our decision.


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              Under Rule 11(d)(2)(B), a defendant may withdraw his guilty plea before

the district court imposes sentence if "the defendant can show a fair and just reason for

requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). The decision to allow a guilty

plea to be withdrawn is committed to the district court's discretion. United States v.

Torres, 129 F.3d 710, 715 (2d Cir. 1997). We review a district court's denial of a motion to

withdraw a guilty plea for abuse of discretion. United States v. Gonzalez, 647 F.3d 41, 57

(2d Cir. 2011). Pichardo principally argues that his guilty plea was involuntary because

he did not understand the charges against him and because he received ineffective

assistance of counsel. We conclude that the district court did not abuse its discretion in

denying the motion to withdraw.

1.     Nature of the Charge

              When a motion to withdraw a plea is premised on involuntariness, the

defendant must "raise a significant question about the voluntariness of the original

plea." Torres, 129 F.3d at 715. A plea cannot be considered voluntary unless the

defendant has "an awareness of the true nature of the charge against him." Oyague v.

Artuz, 393 F.3d 99, 106 (2d Cir. 2004) (citing Henderson v. Morgan, 426 U.S. 637, 645

(1976)).

           Pichardo argues that his guilty plea was not voluntary because he did not

know at the time of his offense that the identification documents he used to obtain a

passport belonged to a real person. See United States v. Tureseo, 566 F.3d 77, 86 (2d Cir.


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2009) (finding error in the district court's refusal to instruct the jury that "an aggravated

identity theft conviction requires a finding that [the defendant] knew that the means of

identity he used . . . belonged to another person, i.e., an actual person" (citing Flores-

Figueroa v. United States, 556 U.S. 646 (2009))). This assertion, however, contradicts the

statements he made at the plea allocution and in his sworn affidavit admitting to the

crime. Pichardo first admitted to purchasing a Puerto Rican birth certificate and social

security card with the name of "David Gascot" for approximately $900-$1000. He later

admitted to repeatedly using the personal identification information of "another

person" during the plea colloquy. App. at 33-35. He also stated that he used that false

identity to apply for a passport and also to successfully obtain Medicaid benefits, a New

York identification card, and a New York driver's license. We agree with the district

court that Pichardo's "repeated and successful use of Gascot's personal identification

information . . . underscores his reliance on and confidence in the use of [that] identity

as the identity of a real person." App. at 108; see United States v. Doe, 661 F.3d 550, 562-63

(11th Cir. 2011) (noting that "a defendant's repeated and successful testing of the

authenticity of [the] victim's identifying information prior to the crime at issue is

powerful circumstantial evidence that [he] knew the identifying information belonged

to a real person as opposed to a fictitious one"). Ultimately, a "defendant's bald

statements that simply contradict what he said at his plea allocution are not sufficient

grounds to withdraw the guilty plea." Torres, 129 F.3d at 715.


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2.     Ineffective Assistance of Counsel

              "Ineffective assistance of counsel may render a guilty plea involuntary,

and hence invalid." Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992). Under

Strickland v. Washington, 466 U.S. 668 (1984), to establish ineffective assistance of

counsel, Pichardo must show that "counsel's representation fell below an objective

standard of reasonableness," id. at 688, and that "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been

different," id. at 694. "A district court's determination of a claim of ineffective assistance

is a mixed question of law and fact and is reviewed de novo." United States v. Arteca, 411

F.3d 315, 320 (2d Cir. 2005). In assessing counsel's performance, we "must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance." United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990)

(internal quotation marks omitted).

          Pichardo claims that his prior counsel failed to explain the mens rea

requirement for aggravated identity theft to him, and that this failure constituted

ineffective assistance because he would not have pleaded guilty if he had known this

element of the offense. While it is unclear exactly what Pichardo's counsel told him, the

district court was entitled to rely upon the defendant's sworn statements, made in open

court with the assistance of an interpreter, that he understood the charges against him,

had discussed the plea with his attorney, and understood the consequences of his plea.


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The district court was further assured by counsel "that he believed there was a sufficient

factual predicate for a guilty plea and that he knew of no reason why the [c]ourt should

not accept the plea." App. at 114.

          Pichardo's related contention that he was unaware of the mens rea

requirement "through any other means" is belied by the record. In describing the

elements of the offense at the plea hearing, the district judge explained that the

government would need to prove that he "knowingly . . . used, without lawful

authority, a means of identification of another person." App. at 28. Moreover, in light

of Pichardo's admissions described above, there would have been no reason for counsel

to explain that the information had to belong to a real person. Thus, there is no basis for

Pichardo's claim that he would have pleaded differently if his counsel had informed

him of the mens rea requirement. Because Pichardo did not demonstrate that counsel's

representation fell below an objective standard of reasonableness, or that he suffered

prejudice because of counsel's alleged error, his ineffective assistance claim was

properly denied.




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             We have considered Pichardo's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                       FOR THE COURT:
                                       Catherine O'Hagan Wolfe, Clerk




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