     12-1268-cr
     United States v. Nourse
 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                             FOR THE SECOND CIRCUIT
 5
 6                               August Term, 2012
 7
 8
 9        (Argued: April 19, 2013           Decided: July 16, 2013)
10
11                               Docket No. 12-1268
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   UNITED STATES OF AMERICA,
16
17                     Appellee,
18
19               - v.-
20
21   Michael Cook, Sean Herrmann, AKA Vinny, Scott Power, Marcel
22   Malachowski, AKA Sealed Defendant 4, AKA Memo, Selena
23   Hopper, AKA Sealed Defendant 2, AKA Sealed Defendant 5, Lee
24   Tarbell, AKA Sealed Defendant 6, AKA Sleeman, June Jacobs,
25   AKA Sealed Defendant 7, AKA Punk, John Jacobs, AKA Sealed
26   Defendant 8, AKA Wadd, Bryan Cole, AKA Sealed Defendant 9,
27   AKA Buckwheat, Jacquis Harris, AKA Sealed Defendant 7, AKA
28   Sealed Defendant 10, Owen Peters, AKA Sealed Defendant 11,
29   AKA Weezy, Brandon Benedict, AKA Sealed Defendant 12, David
30   Herrmann, AKA Sealed Defendant 13, Adam Fender, AKA Sealed
31   Defendant 14, AKA The Electrician, Jonas Cavallo, AKA Sealed
32   Defendant 15, AKA The Carpenter, Armande Millhouse, AKA
33   Sealed Defendant 16, AKA Beatlejuice, AKA Milly, Jeffrey
34   Baroni, AKA Sealed Defendant 18, Jason Tackus, AKA Sealed
35   Defendant 19, Joshua Brown, AKA Sealed Defendant 20, Sean
36   Canty, AKA Sealed Defendant 21, Aaron Freyder, AKA Sealed
37   Defendant 22, Dominick Stone, AKA Sealed Defendant 23,
38
39                     Defendants,
40
41   ANDREW NOURSE, AKA Sealed Defendant 17, AKA The Jeweler,
42
43                     Defendant-Appellant.
44
45   - - - - - - - - - - - - - - - - - - - -x
1        Before:       JACOBS, Chief Judge, POOLER and WESLEY,
2                      Circuit Judges.
3
4        Andrew Nourse appeals from his sentence of 60 months’

5    imprisonment for conspiracy to distribute and possess with

6    the intent to distribute more than a 100 kilograms of

7    marijuana, entered in the United States District Court for

8    the Northern District of New York (Kahn, J.).    He challenges

9    a ruling on criminal history; but to press that argument,

10   Nourse must overcome an appeal waiver.    Although the

11   district court expressed the terms of the waiver

12   imperfectly, the objection was unpreserved.    We hold that

13   plain error is the standard of review for an unpreserved

14   challenge to an appeal waiver, and that Nourse has not

15   sustained his burden.   Affirmed.

16                                 BRENDA K. SANNES (Terrence M.
17                                 Kelly, on the brief) for Richard
18                                 S. Hartunian, United States
19                                 Attorney for the Northern
20                                 District of New York, Syracuse,
21                                 NY, for Appellee.
22
23                                 DEVIN MCLAUGHLIN, Langrock
24                                 Sperry & Wool, LLP, Middlebury,
25                                 VT, for Defendant-Appellant.
26
27   DENNIS JACOBS, Chief Judge:
28
29       Andrew Nourse appeals from his 60-month sentence,

30   entered in the United States District Court for the Northern



                                    2
1    District of New York (Kahn, J.), for conspiracy to

2    distribute and possess with the intent to distribute more

3    than a 100 kilograms of marijuana.   He challenges a ruling

4    on criminal history; but to press that argument, Nourse must

5    overcome an appeal waiver.   Although the district court

6    expressed the terms of the waiver imperfectly, the objection

7    was unpreserved.   We hold that plain error is the standard

8    of review for an unpreserved challenge to an appeal waiver,

9    and that Nourse has not sustained his burden.     Affirmed.

10

11                                 I

12       Andrew Nourse was a driver for an Albany drug

13   distribution ring that operated in 2008-09.      After his

14   arrest in 2011, Nourse entered a plea agreement consenting

15   to the charge of conspiracy to distribute and possess with

16   the intent to distribute more than 100 kilograms of

17   marijuana.   He stipulated that he was “accountable for at

18   least 100 kilograms but less than 400 kilograms” of

19   marijuana.   Plea Agreement at 7, ECF No. 389.

20       Nourse’s plea agreement recites that he consulted with

21   counsel, “fully underst[ood] the extent of his rights to

22   appeal” and “waive[d] any and all rights, including those


                                   3
1    conferred by l8 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to

2    appeal or collaterally attack his conviction and any

3    sentence of imprisonment of 60 months or less . . . .”        Plea

4    Agreement at 12 (emphasis added).

5        During the change of plea colloquy, the district court

6    reviewed Nourse’s plea agreement with him, touching as

7    follows on the appeal waiver:

 8       THE COURT: Is there a waiver of any appeal
 9       rights in the plea agreement?
10       MR. KELLY: Yes, your Honor. The defendant
11       waives his right to appeal and to collaterally attack
12       his conviction. He preserves the right to appeal the
13       reasonableness of the sentence in excess of 60 months.
14       THE COURT: Is that correct, Mr. Kindlon?
15       MR. KINDLON: Yes, your Honor, it is.
16       THE COURT: Do you understand that too, Mr. Nourse?
17       THE DEFENDANT: I do.
18
19   Change of Plea Hr’g Tr. at 14-15, ECF No. 550.
20
21       The presentence investigation report (“PSR”) assigned

22   Nourse three criminal history points based on three

23   proceedings in Massachusetts state court, each of which was

24   “continued without a finding.”      Presentence Report

25   (“PSR”) ¶¶ 31-33, ECF No. 432.      A continuance without a

26   finding is a mechanism in the Massachusetts courts that

27   permits charges to be dismissed on a date certain if the

28   defendant complies with negotiated terms or probation.        See




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1    Mass. Gen. Laws ch. 278, § 18.1

2        In the first proceeding, Nourse was charged with

3    operating a motor vehicle under the influence of liquor,

4    operating an unregistered motor vehicle, and marked lane

5    violations in the district court in Hingham.    PSR ¶ 31.   In

6    the second, he was charged with possession of marijuana in

7    Boston.   Id. ¶ 32.   In the third, he was charged with

8    operating a motor vehicle with a suspended license,

9    operating an unregistered vehicle, and possession of

10   marijuana, in Framingham.   Id. ¶ 33.   Each case was

11   “continued without a finding,” apparently in exchange for a

12   probationary agreement.


          1
             “A defendant who is before the Boston municipal
     court or a district court or a district court sitting in a
     juvenile session or a juvenile court on a criminal offense
     within the court’s final jurisdiction shall plead not guilty
     or guilty, or with the consent of the court, nolo
     contendere. Such plea of guilty shall be submitted by the
     defendant and acted upon by the court; provided, however,
     that a defendant with whom the commonwealth cannot reach
     agreement for a recommended disposition shall be allowed to
     tender a plea of guilty together with a request for a
     specific disposition. Such request may include any
     disposition or dispositional terms within the court’s
     jurisdiction, including, unless otherwise prohibited by law,
     a dispositional request that a guilty finding not be
     entered, but rather the case be continued without a finding
     to a specific date thereupon to be dismissed, such
     continuance conditioned upon compliance with specific terms
     and conditions or that the defendant be placed on probation
     pursuant to the provisions of [chapter 276, § 87].” Mass.
     Gen. Laws ch. 278, § 18.
                                    5
1        Nourse argued at the February 2012 sentencing hearing

2    that these prior offenses should not affect his criminal

3    history.     The district court rejected the argument,

4    referencing a First Circuit opinion holding that a

5    Massachusetts continuance without a finding could be

6    considered for the purpose of criminal history.       Sentencing

7    Hr’g Tr. at 5-6, ECF No. 514.       However, the district court

8    also suggested that it was “an interesting issue for appeal,

9    if [Nourse’s counsel] is so inclined; I don’t think our

10   Second Circuit has ruled on it at all.”        Id. at 5.   The

11   court proceeded to sentence Nourse to 60 months’

12   imprisonment, the statutory mandatory minimum.       Id. at 6.

13

14                                   II

15       Before accepting a guilty plea, Federal Rule of

16   Criminal Procedure 11(b)(1)(N) requires that the court

17   “inform the defendant of, and determine that the defendant

18   understands . . . the terms of any plea-agreement provision

19   waiving the right to appeal or to collaterally attack the

20   sentence.”     Fed. R. Crim. P. 11(b)(1)(N).    The parties

21   dispute the proper standard of review for Nourse’s claim

22   that the district court failed to comply with the Rule.


                                     6
1        A circuit split over how to evaluate Rule 11 errors was

2    resolved in United States v. Vonn, 535 U.S. 55, 58-59

3    (2002).    A defendant who has not preserved a Rule 11

4    objection in district court and wishes to amend his guilty

5    plea on appeal must show plain error.     Id.     After Vonn,

6    other circuits have applied plain error to appeals arising

7    under Rule 11(b)(1)(N) specifically.     See United States v.

8    Borrero-Acevedo, 533 F.3d 11, 13 (1st Cir. 2008) (joining

9    “the other circuits to have considered the question and

10   hold[ing] that the plain error standard applies to

11   unpreserved claims of violations of Fed. R. Crim. P.

12   11(b)(1)(N)”) (citing United States v. Murdock, 398 F.3d

13   491, 496 (6th Cir. 2005) and United States v.

14   Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004)); see

15   also United States v. Sura, 511 F.3d 654, 662 (7th Cir.

16   2007); United States v. Edgar, 348 F.3d 867, 873 (10th Cir.

17   2003).    Because we have not expressly stated the standard of

18   review for unpreserved challenges under subsection

19   (b)(1)(N), Nourse suggests that they should be considered

20   under some different standard.     We disagree.

21       Nourse argues that this Court has “refrained” from

22   imposing a plain error standard in this context.       Instead,



                                    7
1    he advocates for the test set out in United States v. Ready,

2    which asks whether “the record ‘clearly demonstrates’ that

3    the waiver was both knowing (in the sense that the defendant

4    fully understood the potential consequences of his waiver)

5    and voluntary.”   82 F.3d 551, 557 (2d Cir. 1996) (citation

6    omitted).

7        Ready was decided three years before the 1999 adoption

8    of Rule 11(b)(1)(N), and six years before Vonn.       Nourse

9    cites other of our cases in which plain error was not

10   applied as the standard; but they also pre-date one or both

11   of Rule 11(b)(1)(N) and Vonn.       See United States v. Tang,

12   214 F.3d 365, 368 (2d Cir. 2000); United States v.

13   Martinez-Rios, 143 F.3d 662, 668 (2d Cir. 1998); United.

14   States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997).       In any

15   event, Ready’s “knowing and voluntary” test is not at all

16   inconsistent with plain error review: “Rule 11 is designed

17   to assist district courts in ensuring that a defendant’s

18   guilty plea is knowing and voluntary.”       United States v.

19   Mercado, 349 F.3d 708, 211 (2d Cir. 2003) (emphasis added).

20       We are bound by Vonn, which governs all Rule 11

21   appeals, subsection (b)(1)(N) included.      The general

22   principle is that “Rule 11 violations that are not objected


                                     8
1    to at the time of the plea are subject to plain error review

2    under Rule 52(b) of the Federal Rules of Criminal

3    Procedure.”    United States v. Youngs, 687 F.3d 56, 59 (2d

4    Cir. 2012) (citing Vonn, 535 U.S. at 62-63).    That rule has

5    been applied to subsections other than (b)(1)(N), see, e.g.,

6    United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005)

7    (using plain error review in the context of a Rule

8    11(b)(1)(K) appeal), and it applies here as well.

9        Plain error review facilitates (and protects) judicial

10   efficiency.    Without it, litigants would have little reason

11   to bring Rule 11 errors to a district court’s attention, a

12   consideration that is equally salient for subsection

13   (b)(1)(N).    See Borrero-Acevedo, 533 F.3d at 15-16 (citing

14   Vonn, 535 U.S. at 73).    Appellate waivers advance powerful

15   considerations of efficiency and finality; prosecutors make

16   various accommodations in plea deals in exchange for the

17   certainty that they will not have to spend resources

18   litigating appeals down the line.

19       Accordingly, we apply plain error review to Nourse’s

20   unpreserved Rule 11(b)(1)(N) challenge.    “Plain error review

21   requires a defendant to demonstrate that (1) there was

22   error, (2) the error was plain, (3) the error prejudicially



                                    9
1    affected his substantial rights, and (4) the error seriously

2    affected the fairness, integrity or public reputation of

3    judicial proceedings. . . . Additionally, to show that a

4    Rule 11 violation was plain error, the defendant must

5    demonstrate that there is a reasonable probability that, but

6    for the error, he would not have entered the plea.”        Youngs,

7    687 F.3d at 59 (internal quotations omitted).

8

9                                    III

10       Nourse challenges the appeal waiver on two grounds:

11   that the judge failed to advise him of the “heart” of the

12   appeal waiver; and that the advice given was undermined by

13   the judge’s observation that the issue of Massachusetts law

14   bearing on criminal history was ambiguous and ripe for an

15   appeal to the Second Circuit.        Neither argument is

16   persuasive; Nourse fails to demonstrate that any error

17   existed, or that absent the error he would not have entered

18   the plea.

19       Nourse argues that the judge “never informed [him] that

20   he was waiving the right to appeal a sentence of 60 months

21   or less.”   Nourse Br. at 10.    Because Nourse did not raise

22   this error in the district court, where it could have been


                                     10
1    promptly sorted out, his argument is reviewed for plain

2    error.   See Vonn, 535 U.S. at 62-63.

3        The court explicitly asked Nourse about the appellate

4    waiver, and Nourse confirmed that he consented to it.       The

5    exchange was perfectly lucid and understandable.

6        Nourse argues that the prosecutor’s expression of the

7    waiver did “not state by necessary implication that [Nourse]

8    could not appeal a sentence of less than 60 months.”       Nourse

9    Br. at 11.    But no negative pregnant suggested that he

10   could.   The prosecutor stated that Nourse waived his right

11   to appeal, but preserved his right to appeal a sentence in

12   excess of 60 months.    The first point makes sense only if

13   the second is understood as a carve-out; i.e., there is a

14   general waiver except for a sentence that exceeds 60 months.

15   Since, under the circumstances, there was “no realistic

16   possibility that [the defendant] might have misunderstood

17   the nature or source of the waiver,” the district court

18   “properly addressed the waiver provision during the plea

19   colloquy.”    United States v. Morgan, 386 F.3d 376, 379 (2d

20   Cir. 2004).

21       Nourse cites as an analog, United States v. Smith, 618

22   F.3d 657, 664-65 (7th Cir. 2010), in which the district



                                    11
1    court asked the public defender whether there was a plea

2    waiver and elicited the response, “everything is waived with

3    the exception of the reasonableness of the

4    sentence . . . [a]nd he can’t withdraw his plea.”       Id. at

5    565.    The judge asked the defendant, “[y]ou understand

6    that?” and the defendant said he did.     Id.    The Seventh

7    Circuit held that this exchange “did not comport with the

8    requirements of Rule 11(b)(1)(N)” because the judge had not

9    adequately explained to the defendant the “substance of the

10   waiver.”    Id.   The judge’s inquiries focused on the finality

11   of the plea rather than the appeal waiver itself.       Id.

12          There is no such ambiguity here.   The relevant exchange

13   among the judge, the prosecutor, Nourse’s counsel, and

14   Nourse himself referenced only the appeal waiver.       The most

15   logical understanding of Nourse’s response is that, except

16   for a retained “right to appeal the reasonableness of [a]

17   sentence in excess of 60 months,” he understood that he was

18   waiving altogether “his right to appeal and to collaterally

19   attack his conviction.”    Change of Plea Hr’g Tr. at 14.

20          Nourse contends that the appeal waiver was at least

21   impaired when the district court suggested a Second Circuit

22   appeal on the issue of Massachusetts law.       However, “an



                                     12
1    otherwise enforceable waiver of appellate rights is not

2    rendered ineffective by a district judge’s post-sentencing

3    advice suggesting, or even stating, that the defendant may

4    appeal.”     United States v. Fisher, 232 F.3d 301, 304 (2d

5    Cir. 2000).     The district court’s stray comment occurred at

6    sentencing, not at the plea colloquy, so it does not speak

7    to whether Nourse’s appellate waiver was knowing and

8    voluntary.     Nourse relies on a proviso in Fisher that “[a]

9    district judge’s advice concerning appellate rights might

10   weigh in favor of construing an ambiguous waiver not to be

11   enforceable.”     Id. at 304 n.2.    But for the reasons

12   explained supra, the waiver here was not at all ambiguous.

13       In sum, Nourse made a knowing and voluntary waiver.         He

14   therefore has not established a Rule 11(b)(1)(N) error to

15   satisfy the first step of the plain error test.

16       Nourse also fails to establish plain error for a

17   second, alternative reason: he has not shown “a reasonable

18   probability that, but for the error, he would not have

19   entered the plea.”     Youngs, 687 F.3d at 59.    In fact, Nourse

20   admits that he does not want to withdraw his plea.         Nourse

21   Br. at 14 (“Unlike most Rule 11 challenges, where the

22   defendant is seeking to withdraw his plea, Mr. Nourse is



                                     13
1   merely seeking the opportunity to be heard on appeal as to

2   the sentence he claims is illegal.”).

3       Because Nourse’s appeal waiver is binding, we need not

4   reach the merits of his argument under Massachusetts law.

5

6       For the foregoing reasons, we affirm.




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