     10-0677
     United States v. Delgiudice

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of October, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-0677
17
18       RICHARD DELGIUDICE,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Laurie S. Hershey, Manhasset,
23                                             New York.
24
25       FOR APPELLEES:                        Michael D. Maimin, Katherine
26                                             Polk Failla, Assistant United
27                                             State Attorneys for Preet
28                                             Bharara, United States Attorney
29                                             for the Southern District of New
30                                             York, New York, New York.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Daniels, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Richard Delgiudice appeals from a judgment of
 9   conviction, following a guilty plea to one count of
10   conspiracy to distribute and possess with intent to
11   distribute one kilogram or more of heroin. We assume the
12   parties’ familiarity with the underlying facts, the
13   procedural history, and the issues presented for review.
14
15        Delgiudice argues that the district court violated
16   Federal Rule of Criminal Procedure 11 and that the
17   forfeiture amount is without evidentiary basis. Delgiudice
18   brought neither objection to the attention of the district
19   court and therefore must show plain error. See United
20   States v. Vonn, 535 U.S. 55 (2002) (discussing Rule 11
21   error); United States v. Uddin, 551 F.3d 176, 181 (2d Cir.
22   2009) (discussing forfeiture). He does not.
23
24        [1] Delgiudice argues that the district court violated
25   Rule 11(b)(3) by accepting his plea without a factual basis.
26   To comply with the Rule, the court must “‘assure itself
27   simply that the conduct to which the defendant admits is in
28   fact an offense under the statutory provision under which he
29   is pleading guilty.’” United States v. Garcia, 587 F.3d
30   509, 514 (2d Cir. 2009) (quoting United States v. Maher, 108
31   F.3d 1513, 1524 (2d Cir. 1997)). “The court may rely on
32   defendant's own admissions, information from the government,
33   or other information appropriate to the specific case.”
34   United States v Andrades, 169 F.3d 131, 136 (2d Cir. 1999).
35
36        Delgiudice pled guilty to one count of conspiracy to
37   distribute and possess with intent to distribute one
38   kilogram or more of heroin. The elements of such a
39   conspiracy are “the existence of a conspiracy[,] the
40   defendant’s willful joining it,” United States v. Story,
41   891 F.2d 988, 992 (2d Cir. 1989), and the quantity of
42   narcotics involved, United States v. Gonzalez, 420 F.3d 111,
43   129 (2d Cir. 2005). There must be at least one person in
44   the conspiracy (apart from the defendant) not acting as an
45   agent for the government. United States v. Goldberg, 756
46   F.2d 949, 958 (2d Cir. 1985).
47

                                  2
 1        Notwithstanding initial confusion in Delgiudice’s
 2   allocution as to the date of the conspiracy, the parties
 3   provided facts sufficient to substantiate each element of
 4   the offense. Delgiudice admitted to entering an agreement
 5   with others in July of 2005 to purchase and distribute two
 6   kilograms of heroin. Defense counsel clarified that the
 7   transaction to which Delgiudice was pleading guilty actually
 8   occurred in June of 2005. As the prosecutor explained,
 9   Delgiudice’s co-conspirator was acting as a government agent
10   in July but not in June. Delgiudice then admitted to
11   arranging to purchase and distribute one kilogram of heroin
12   in June. Given these statements, there is no plain error.
13
14        [2] Based on the street-value of two kilograms of
15   heroin, the court ordered Delgiudice to pay $96,000 in
16   forfeiture. Delgiudice asserts that there was only
17   evidentiary basis for his having possessed and distributed
18   one kilogram of heroin.
19
20        Delgiudice waived this argument. “[W]aiver is the
21   ‘intentional relinquishment or abandonment of a known
22   right.’” United States v. Olano, 507 U.S. 725, 733 (1993)
23   (internal citations omitted); see also United States v.
24   Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009) (finding that
25   the defendant waived his right to appeal when the court
26   presented the defendant with a proposed jury instruction and
27   the defendant agreed that it was satisfactory). When the
28   court indicated that it would order forfeiture of $96,000,
29   defense counsel was told, “[i]f you think that there is
30   something that might demonstrate that I have some authority
31   or basis to order something different, I’ll give you that
32   opportunity.” After conferring with Delgiudice, counsel
33   replied, “[y]our honor, we will accept your judgment on it.”
34
35        Finding no merit in Delgiudice’s remaining arguments,
36   we hereby AFFIRM the judgment of the district court.
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




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