    12-560-cr
    United States v. Wilson


                              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 25th day of June, two thousand thirteen.

    PRESENT:
               CHESTER J. STRAUB,
               REENA RAGGI,
               PETER W. HALL,
                     Circuit Judges.
    _____________________________________

    UNITED STATES OF AMERICA,
                   Appellee,

                       v.                                           12-560-cr

    ZOMARA WILSON,
                     Defendant-Appellant.
    _____________________________________

    FOR APPELLANT:                 Zomara Wilson, pro se, Bronx, New York.

    FOR APPELLEES:                 Michael Alexander Levy, Rachel Peter Kovner, Katherine Polk
                                   Failla, Assistant United States Attorneys, for Preet Bharara,
                                   United States Attorney for the Southern District of New York,
                                   New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Deborah A. Batts, Judge; Gabriel W. Gorenstein, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 17, 2012, is AFFIRMED.

       Defendant Zomara Wilson appeals pro se from a judgment of conviction, entered

pursuant to a guilty plea, for misdemeanor federal financial aid fraud. See 20 U.S.C.

§ 1097(a). She argues error in the denial of her motion to withdraw her guilty plea. We

review Wilson’s challenge for abuse of discretion, see United States v. Schmidt, 373 F.3d

100, 102 (2d Cir. 2004), and identify no such abuse here. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       A defendant may withdraw her plea of guilty before she has been sentenced “if . . .

the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim.

P. 11(d)(2)(B). In applying this standard, a district court properly considers (1) the amount

of time that has elapsed between the plea and the motion, (2) whether the defendant has

asserted a claim of legal innocence, and (3) whether the government would be prejudiced by

a withdrawal of the plea. See United States v. Doe, 537 F.3d 204, 210 (2d Cir. 2008). Here,

the district court did not abuse its discretion in denying Wilson’s withdrawal motion because

(1) more than two months had passed before she sought to withdraw her plea; (2) her claim

of legal innocence contradicted her earlier plea allocution, in which she admitted that she had

knowingly aided and abetted a student seeking to obtain federal financial aid with a false

                                              2
diploma; and (3) as the magistrate judge correctly found, the student interviews on which

Wilson relied were not exculpatory, but instead were circumstantial evidence of Wilson’s

guilt.

         Nor can we credit, on de novo review, Wilson’s claim that her counsel’s

ineffectiveness supports withdrawal of her guilty plea. See generally United States v. Arteca,

411 F.3d 315, 320 (2d Cir. 2005) (recognizing that counsel’s ineffective assistance during

plea negotiations can support withdrawal of plea if counsel’s deficient performance

undermined voluntary and intelligent nature of defendant’s decision to plead guilty). As the

district court recognized, the record shows that Wilson’s counsel correctly informed her that

the student interviews had implicated her in the fraud.          Moreover, in light of this

overwhelming evidence against her, as well as of the non-incarceratory terms of her plea

agreement, Wilson cannot demonstrate that but for counsel’s purported ineffectiveness, “the

result of the proceeding would have been different” in that she would not have pleaded

guilty. Strickland v. Washington, 466 U.S. 668, 694 (1984); see United States v. Hernandez,

242 F.3d 110, 112 (2d Cir. 2001) (requiring defendant to show that “‘but for counsel’s errors,

[she] would not have pleaded guilty and would have insisted on going to trial’” (quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)). Accordingly, the district court did not abuse its

discretion in denying Wilson’s motion to withdraw her guilty plea.

         Wilson’s remaining claims warrant little further discussion. With respect to Wilson’s

challenge to the indictment as duplicitous, her “guilty plea waives any challenges to a

                                               3
duplicitous indictment.” United States v. Moloney, 287 F.3d 236, 239 (2d Cir. 2002).

Similarly, insofar as Wilson challenges the evidence against her, “a defendant who pleads

guilty unconditionally admits [her] guilt and waives [her] right to appeal all nonjurisdictional

contentions.” United States v. Maher, 108 F.3d 1513, 1528 (2d Cir. 1997).

       To the extent Wilson claims that a government agent and the prosecutor committed

fraud on the court by obtaining her indictment through false testimony, her claims are not

supported by the record because the student interviews were consistent with the statements

made by the agent and the prosecutor. As for Wilson’s claim that her guilty plea was not in

accord with the plea agreement because she pleaded guilty to aiding and abetting and not to

unlawfully obtaining federal financial aid, the plea agreement itself, which specifically

referenced the aiding and abetting statute, defeats the argument. In addition, Wilson’s claim

that she did not plead guilty under oath is not properly before us because it was raised for the

first time in Wilson’s reply brief. See United States v. Yousef, 327 F.3d 56, 115 (2d Cir.

2003) (“We will not consider an argument raised for the first time in a reply brief.”). In any

event, the record reveals that Wilson was under oath when she pleaded guilty.

       Insofar as Wilson argues ineffective assistance of counsel as an independent basis to

overturn the conviction, such a claim is more appropriately heard on collateral review. See

United States v. Doe, 365 F.3d 150, 152 (2d Cir. 2004); see also Massaro v. United States,

538 U.S. 500, 504–05 (2003). Thus, Wilson may, if she wishes, pursue her ineffective

assistance claim in a properly filed 28 U.S.C. § 2255 motion.

                                               4
      We have considered Wilson’s remaining arguments on appeal and find them to be

without merit. For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.
                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




                                          5
