     12-4451
     United States v. Williams, et al.

                          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 29th day of April, two thousand fourteen.
 5
 6       PRESENT: GUIDO CALABRESI,
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               12-4451
16
17       Mario Williams,
18                Defendant-Appellant.*
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        STEVEN Y. YUROWITZ, Newman &
22                                             Greenberg, New York, New York.
23



                *
               Clerk of Court is directed to amend the caption to
         conform with the above.
                                                  1
 1   FOR APPELLEES:             RAJIT S. DOSANJH, for Richard S.
 2                              Hartunian, United States
 3                              Attorney for the Northern
 4                              District of New York, Syracuse,
 5                              New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Northern District of New York (McAvoy, S.J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Mario Williams (“Williams”) appeals from a judgment of
15   the United States District Court for the Northern District
16   of New York (McAvoy, S.J.), sentencing him, following a
17   guilty plea, to 51 months’ imprisonment for conspiracy to
18   distribute and possess with intent to distribute cocaine and
19   cocaine base. On appeal, Williams argues that (1) the
20   district court erred in denying Williams’ motion to withdraw
21   his guilty plea, because the factual basis for his plea was
22   insufficient; (2) the district court erred in denying
23   Williams’ motion for appointment of new counsel in advance
24   of sentencing, because his motion for new counsel created a
25   conflict of interest that would prevent his attorney from
26   providing effective assistance at sentencing; and (3) he was
27   denied effective assistance of counsel at his sentencing.
28   We assume the parties’ familiarity with the underlying
29   facts, the procedural history, and the issues presented for
30   review.
31
32   1.   Williams’ pro se motion to withdraw his plea did not
33   challenge the district court’s determination that there was
34   a sufficient factual basis for his plea. As a result, we
35   review this claim for plain error. United States v. Vonn,
36   535 U.S. 55, 62-74 (2002).
37
38        Federal Rule of Criminal Procedure 11(b)(3) requires
39   that, “[b]efore entering judgment on a guilty plea, the
40   court must determine that there is a factual basis for the
41   plea.” In making this determination, the court is not
42   required “to weigh evidence to assess whether it is even
43   more likely than not that the defendant is guilty”; rather,
44   the rule “requires the court to assure itself simply that
45   the conduct to which the defendant admits is in fact an
46   offense under the statutory provision under which he is


                                  2
 1   pleading guilty.” United States v. Maher, 108 F.3d 1513,
 2   1524 (2d Cir. 1997).
 3
 4        The record of the plea hearing contradicts Williams’
 5   contention that there was “nothing to establish that [he]
 6   was joining a conspiracy with the intent to possess and
 7   distribute narcotics.” Williams confirmed the accuracy of
 8   the government’s description of his “role in the conspiracy”
 9   and “what [he] did.” Thus, Williams admitted that he
10   “conspired with Jamie Toomer and others to possess with
11   intent to distribute cocaine base, crack.” Williams fails
12   to establish any error, let alone plain error, in the
13   acceptance of his plea.
14
15   2.   We review the denial of a motion to substitute counsel
16   for abuse of discretion. United States v. Simeonov, 252
17   F.3d 238, 241 (2d Cir. 2001).
18
19        Williams contends that his motion for appointment of
20   new counsel and, in particular, the claim in his motion that
21   his attorney “misadvised him to plead guilty,” created a
22   conflict of interest. However, it is well-settled that the
23   filing of a motion for appointment of new counsel does not,
24   in and of itself, create an actual conflict of interest
25   sufficient to justify the appointment of new counsel. See
26   United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000).
27   Accordingly, the district court committed no error of law in
28   denying the motion.
29
30   3.   Whether a defendant’s representation “violates the
31   Sixth Amendment right to effective assistance of counsel is
32   a mixed question of law and fact that is reviewed de novo.”
33   Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
34   Generally, we “are reluctant to address ineffectiveness
35   claims on direct review” because “the constitutional
36   sufficiency of counsel’s performance is usually unripe for
37   seasoned retrospection until after the trial and whatever
38   appeal may follow.” United States v. Salameh, 152 F.3d 88,
39   160 (2d Cir. 1998) (per curiam). However, we have
40   discretion to consider such claims on direct appeal where,
41   as here, the defendant is represented by new counsel on
42   appeal and the bases for his allegations of attorney
43   misconduct are “plain on the record.” United States v.
44   Davis, 239 F.3d 283, 285 (2d Cir. 2001).
45
46        In order to prevail on an ineffective assistance of
47   counsel claim, a defendant must show (1) “that counsel’s

                                  3
 1   representation fell below an objective standard of
 2   reasonableness,” and (2) “that there is a reasonable
 3   probability that, but for counsel’s unprofessional errors,
 4   the result of the proceeding would have been different.”
 5   Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In
 6   this analysis, “counsel is strongly presumed to have
 7   rendered adequate assistance and made all significant
 8   decisions in the exercise of reasonable professional
 9   judgment.” Id. at 690.
10
11        Williams argues that his counsel was constitutionally
12   ineffective for failing to make a series of arguments at
13   sentencing concerning the calculation of his Guidelines
14   range.
15
16        First, Williams contends that two of his convictions
17   for unlawful possession of marijuana under New York Penal
18   Law § 221.05 should not have been counted towards his
19   criminal history score because they were merely
20   “violations,” similar to loitering. See U.S.S.G. §
21   4A1.2(c)(2) (sentences for “loitering” and offenses “similar
22   to” loitering are never to be counted). However, even if
23   one or both of the marijuana possession convictions cited by
24   Williams were not counted, and his total score were thus
25   reduced, he would have remained in Criminal History Category
26   III. As a result, he cannot establish a substantial
27   likelihood of a different outcome, and thus fails to show
28   prejudice.
29
30        Williams next argues that his counsel should have
31   sought a downward departure or variance on the ground that
32   his criminal history score overstated the seriousness of his
33   past criminal record. However, such an argument lacked a
34   substantial likelihood of success, given that his criminal
35   history was marked by a string of drug-related offenses--
36   including offenses whose underlying facts indicated previous
37   involvement with drug trafficking. Cf. U.S.S.G. § 4A1.3
38   cmt. n.3 (“A downward departure . . . may be warranted if,
39   for example, the defendant had two minor misdemeanor
40   convictions close to ten years prior to the instant offense
41   and no other evidence of prior criminal behavior in the
42   intervening period.”).
43
44        Williams also contends that his counsel was
45   constitutionally ineffective for failing to seek a role
46   adjustment. To qualify for an adjustment under U.S.S.G. §
47   3B1.2(b) for being a “minimal participant” in the offense,

                                  4
 1   Williams would have had to show not simply that he “played a
 2   lesser role than his co-conspirators,” but that his conduct
 3   was “‘minimal’ as compared to the average participant in
 4   such a crime.” United States v. Rahman, 189 F.3d 88, 159
 5   (2d Cir. 1999). “[T]he defendant’s lack of knowledge or
 6   understanding of the scope and structure of the enterprise
 7   and of the activities of others,” U.S.S.G. § 3B1.2 cmt. n.4,
 8   is “essential” to a finding of minimal participation, United
 9   States v. LaValley, 999 F.2d 663, 665 (2d Cir. 1993). Here,
10   however, Williams admitted to possession with intent to
11   distribute and/or distribution of 17 grams of crack cocaine
12   and 56 grams of powder cocaine and admitted to an agreement
13   to prepare crack cocaine from powder cocaine at the request
14   of a co-conspirator. These admissions strongly indicate his
15   knowledge of the “activities of others” involved in the drug
16   distribution conspiracy.
17
18        Finally, Williams contends that his counsel failed to
19   seek a lower sentence on the basis of the 18 U.S.C. §
20   3553(a) sentencing factors. The district court, however,
21   expressly considered the Section 3553(a) factors, and
22   Williams cites no factor that defense counsel should have
23   highlighted for the court. Accordingly, Williams fails to
24   establish a substantial likelihood of a different outcome.
25
26
27        For the foregoing reasons, and finding no merit in
28   Williams’ other arguments, we hereby AFFIRM the judgment of
29   the district court.
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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