                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 16-3971
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                  MARC HUBBARD,

                                                      Appellant

                                    ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 15-CR-00096-JS-1)
                         District Judge: Hon. Juan R. Sanchez
                                    ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  on October 3, 2017
                                   ______________

    Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT, District Judge*

                            (Opinion filed: January 29, 2018)

                                    ______________

                                      OPINION**
                                    ______________


      *
        Honorable Gerald J. Pappert, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
      **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
PAPPERT, District Judge

       Appellant Marc Hubbard pled guilty to one count of conspiracy to commit wire

fraud in violation of 18 U.S.C. §§ 1349 and 1343 and seven counts of wire fraud and

aiding and abetting in violation of 18 U.S.C. §§ 1343 and 2. He was subsequently

sentenced to 78 months in prison. Hubbard appeals, claiming errors at both his guilty

plea and sentencing hearings. None of his claims have merit and we will affirm the

conviction and sentence.

                                              I

       Hubbard was indicted in March of 2015 for defrauding investors of over $2.1

million by falsely advertising himself and his company, SDI, as a successful concert

promotion business. He promised investors returns of approximately 25 – 30% on their

short-term investments in SDI and, when making his sales pitch, showed prospective

investors fraudulent financial documents and falsely assured them that their money would

be secured by a $10 million surety bond.

       On June 30, 2016, Hubbard pled guilty, without a plea agreement, to all counts in

the Indictment. During a lengthy hearing, the District Court questioned Hubbard on

numerous issues, including his physical and mental condition and whether he had

consulted with his lawyer regarding the Government’s case against him and his decision

to plead guilty. The District Court also explained the potential sentencing implications of

that decision. After an extensive colloquy, the District Court concluded that Hubbard

was competent to enter a plea, that his decision to do so was knowing, intelligent and

voluntary, and that there was a sufficient factual basis for the plea.

                                              2
       On October 11, 2016, the District Court held a nearly three-hour long sentencing

hearing, at the conclusion of which Hubbard was sentenced to 78 months in prison, three

years of supervised release and ordered to make restitution in the amount of $1.7 million.

After resolving—to counsels’ satisfaction—any objections to the Presentence

Investigation Report (“PSR”), the District Court determined that the appropriate

sentencing guideline range was 63 – 78 months. The PSR calculated a total offense level

of 27 and a criminal history category II, resulting in a guideline range of 78 – 97 months.

The District Court, albeit reluctantly, reduced the offense level to 25 for Hubbard’s

acceptance of responsibility but did not grant Hubbard the additional one level reduction

for timeliness because Hubbard failed to provide the Probation Office with the documents

and information necessary to assess his finances. The District Court imposed a sentence

at the high end of the 63 – 78 month guideline range.

       Hubbard argues that his guilty plea should not have been accepted because (1) it

was entered with the faulty expectation that his sentencing guideline range would be 33 –

41 months and (2) he pled guilty reluctantly. Hubbard also contends that he should be

resentenced because the District Court (1) erroneously considered his guilty plea for

similar conduct in a case pending in the District Court of Hawaii; (2) failed to seal the

courtroom, purportedly curtailing his presentation of information to mitigate his sentence;

and (3) effectively denied him the right to allocute by repeatedly interrupting him.

                                             II

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v.

                                              3
Moreno, 809 F.3d 766, 773 (3d Cir. 2016); United States v. Schweitzer, 454 F.3d 197,

202 (3d Cir. 2006). All issues on appeal are subject to plain error review because none

were raised before the District Court. See Puckett v. United States, 556 U.S. 129, 135

(2009); United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008). To find plain error,

we must find that (1) an error was committed, (2) the error was plain and (3) it affected

the defendant’s substantial rights. See Johnson v. United States, 520 U.S. 461, 466–67

(1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)); United States v.

Lessner, 498 F.3d 185, 192 (3d Cir. 2007) (citing United States v. Stevens, 223 F.3d 239,

242 (3d Cir. 2000)). The decision to correct an error not raised before the trial court is

discretionary and should be exercised “‘only if the error seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’” Lessner, 498 F.3d at 192

(modification in original) (quoting Stevens, 223 F.3d at 242); see also Johnson, 520 U.S.

at 467 (quoting Olano, 507 U.S. at 732).

                                             III

       In pleading guilty, a criminal defendant waives various constitutional rights, such

as the right to a trial by jury. Thus, a guilty plea must be made “‘voluntarily, knowingly,

and intelligently, with sufficient awareness of the relevant circumstances and likely

consequences.’” Lessner, 498 F.3d at 192 (quoting Bradshaw v. Stumpf, 545 U.S. 175,

183 (2005)). Federal Rule of Criminal Procedure 11(b) governs the consideration and

acceptance of guilty pleas and “‘is designed to assist the district judge in making the

constitutionally required determination that a defendant’s guilty plea is truly voluntary.’”

Id. at 193 (quoting McCarthy v. United States, 394 U.S. 459, 465 (1969)). Rule 11(b)(1)

                                              4
requires the sentencing judge to address the defendant in open court and determine that

the defendant understands, among other things, “any maximum possible penalty” he

faces, the court’s obligation to calculate the applicable sentencing guideline range, and to

consider that range together with the 18 U.S.C. § 3553(a) factors in arriving at the

appropriate sentence. See Fed. R. Crim. P. 11(b)(1). Rule 11(b)(2) requires the judge to

“address the defendant personally in open court and determine that the plea is voluntary

and did not result from force, threats, or promises . . . .” Fed. R. Crim. P. 11(b)(2).

       To successfully argue that his guilty plea was not knowing and voluntary due to

plain error, the “defendant must prove that, were it not for the plain error committed by

the District Court at the time of his plea . . . he would have pled not guilty[,] . . . and not

merely that there may or may not have been a prejudicial impact and that he might have

not pled guilty.” United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002) (emphasis in

original).

                                               A

       The District Court’s fifty-minute guilty plea colloquy complied with Rule 11(b).

Most relevant to this appeal, the District Court ensured that Hubbard’s plea was knowing

and voluntary and that Hubbard understood the maximum possible penalty he faced,

including imprisonment, fine and a term of supervised release. Hubbard was told that he

was facing a total maximum penalty of 160 years in prison, and the District Court

questioned Hubbard to ensure that he understood the significance of this potential amount

of incarceration:



                                                5
       Q: Do you understand that that is your maximum exposure as a result of your

guilty plea in this case?

       A: Yes, Your Honor.

       Q: That’s a lot of jail time. Any questions or reservations about pleading guilty

understanding that?

       A: No, Your Honor.

       Q: Have you thought about your options in this case long and hard?

       A: Yes, Your Honor.

(J.A. 62–63.) Hubbard was also told that the district judge was responsible for

determining the appropriate sentence and that, in deciding Hubbard’s sentence, the court

would consider the advisory sentencing guidelines along with the factors outlined in

§ 3553(a).

       Hubbard claims that his plea was neither knowing nor voluntary because the

Government led him to believe that his sentencing guideline range could be as low as 33

– 41 months.1 “However, all that the law requires is that the defendant be informed of

his/her exposure in pleading guilty. The law does not require that a defendant be given a

reasonably accurate ‘best guess’ as to what his/her actual sentence will be; nor could it,



1
        Hubbard relies on United States v. Palladino, 347 F.3d 29 (2d Cir. 2003), where
the Second Circuit found that the Government’s pursuit of a six point enhancement at
sentencing was inconsistent with the language and spirit of the parties’ plea agreement,
for the proposition that a higher guideline range at sentencing can invalidate a plea.
Here, Hubbard entered into an open plea agreement and thus Palladino, which was based
on the District Court’s interpretation of the agreement between the parties as reflected in
the plea agreement, does not support Hubbard’s position.
                                             6
given the vagaries and variables of each defendant’s circumstances and offending

behavior.” United States v. Mustafa, 238 F.3d 485, 492 n.5 (3d Cir. 2001) (citing United

States v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995)). Here, Hubbard understood full well

that he was potentially facing “a lot of jail time,” including up to 160 years in prison, and

thus was aware of the consequences of his plea. (J.A. 62–63.)

       Hubbard discounts this exchange with the District Court, asserting that as a

“practical matter,” he was “focused on what sentence he would likely receive.” (Reply

Br. at 3.) Whatever sentence Hubbard felt he was “likely” to receive is legally irrelevant

and in any event was something he knew to be an estimate, which could be accurate or

not. The Government’s representation that Hubbard’s range could be as low as 33 – 41

months (if he were given a three point reduction for timely pleading guilty and fell into

criminal history category I), though inaccurate, did not vitiate the District Court’s dutiful

compliance with the requirements of Rule 11 nor did the imposition of a higher sentence

(within the guideline range) rise to the level of reversible error. See United States v.

Oyegbola, 961 F.2d 11, 14–15 (1st Cir. 1992) (noting that the Government’s incorrect

estimate of a likely sentence is not a basis to vacate a guilty plea); Mustafa, 238 F.3d at

492 (concluding that any misrepresentations regarding sentencing calculations “were

dispelled when [the defendant] was informed in open court that there were no guarantees

as to sentence, and that the court could sentence him to the maximum”). Further, the

Government was clear that a base offense level of 23 was merely “a conservative

estimate of what we believe the—at least sort of the very base offense level would be”



                                              7
and the District Court made clear that the offense level could be higher or lower than the

Government’s estimate. (J.A. 66.)

                                                B

       Hubbard also claims that the District Court should not have found that his plea

was knowing and voluntary or sufficiently supported by the facts because he was

reluctant to accept responsibility for what he had done and the District Court failed to

sufficiently explore his medical condition, specifically anxiety. Both of these contentions

are belied by the record.

       After the prosecutor stated the factual basis for the plea, the District Court asked

Hubbard if the account was accurate, to which he replied “substantially.” The judge

followed up, asking Hubbard what he meant by “substantially” and whether he was guilty

of committing the charged crimes—Hubbard responded that the account was accurate

and that he was in fact guilty. (J.A. 76–77.)

       Hubbard argues that this exchange shows that he “wavered” with respect to the

accuracy of the facts supporting his plea such that the District Court should have refused

to accept it. We disagree for two reasons. First, Hubbard acknowledged that he read the

Government’s Plea Memorandum containing the factual basis for the plea, reviewed it

with his lawyer (with whom he was satisfied), that he was pleading guilty of his own free

will and was doing so because he was guilty. (J.A. 55–59; 72–73, 79.) Second, when the

District Court sought to clarify what Hubbard meant by substantially, Hubbard




                                                8
unequivocally admitted that the recitation of the facts was accurate and that he was guilty

of committing the charged crimes. (J.A. 76–77.)2

       Further, the District Court properly explored Hubbard’s competency and

concluded that his anxiety did not inhibit his capacity to enter a guilty plea. During the

plea hearing, Hubbard informed the judge that he suffered from anxiety as a result of an

accident in 2009 in which he was electrocuted. The District Court asked a series of

follow-up questions to understand the nature of the injury, the treatment received, and

any symptoms that Hubbard may still be experiencing some seven years later. Hubbard

told the judge that although he was unable to function normally for about a month after

the accident, his only remaining symptom from the trauma is anxiety. Hubbard said that

he has a prescription for anxiety medication but that he can engage completely in

everyday functions and that the medication is merely to help calm his nerves. At the time

of the plea hearing, Hubbard had not taken the medication for three or four days.

Moreover, he stated that he was “absolutely fine” (J.A. 53), an assurance that undercuts

his contention on appeal that the judge should have adjourned the hearing and ordered a

medical or psychological examination, (Appellant Br. at 25).




2
       Hubbard contends that the District Court itself acknowledged that he was reluctant
when the Court quipped that Hubbard’s acceptance of responsibility was “like pulling
teeth.” (Appellant Br. at 25 (brackets omitted).) The District Court’s “pulling teeth”
comments were directed at Hubbard’s failure to provide necessary financial documents to
the Probation Office, no more. (See J.A. 205, 230.)
                                             9
                                              IV

       Hubbard also argues that he should be resentenced because of errors committed by

the District Court during the sentencing hearing. His arguments are again controverted

by the record.

                                              A

       Hubbard claims that the District Court improperly considered facts at sentencing

that were not supported by the record. Specifically, he believes the District Court erred

when, in assessing the 18 U.S.C. § 3553(a) factors, the District Court considered the fact

that the week before his sentencing in this case, Hubbard pled guilty in a separate case in

the District of Hawaii.

       The PSR, revised on September 20, 2016, noted that Hubbard was arrested on

November 8, 2012 and was pending trial on wire fraud charges in the District of Hawaii

for allegedly engaging in a scheme to defraud the University of Hawaii and others by

promoting a concert through the use of materially false or fraudulent representations. At

the sentencing hearing, Hubbard’s counsel informed the District Court that Hubbard pled

guilty the previous week to the Hawaii charges, which counsel acknowledged involved

“similar types of conduct,” “the concert promotion business,” and the use of Hubbard’s

sham company, SDI. (J.A. 233.) This information was thus plainly supported by the

record and relevant to the District Court’s assessment of the 18 U.S.C. § 3553(a) factors

and it was not error, plain or otherwise, for the District Court to consider it.




                                              10
                                              B

       Hubbard’s remaining arguments concern his right to adequately present mitigating

information at his sentencing hearing. Federal Rule of Criminal Procedure 32 governs

sentencing and requires, inter alia, that the District Court provide both defendant’s

counsel and the defendant an opportunity to address the court and present any mitigating

information. Fed. R. Crim. P. 32(i)(4)(A). A criminal defendant’s right to allocution is

not a constitutional one, but it is a deeply rooted legal tradition that Congress saw fit to

codify in Rule 32. See United States v. Ward, 732 F.3d 175, 180–81 (3d Cir. 2013). The

right is not unlimited, however, and sentencing judges “ha[ve] always retained the

discretion to place certain restrictions on what may be presented during an allocution.”

Id. at 182.

       When conducting a plain error review “in the context of violations of the right of

allocution, ‘as a general matter . . . prejudice should be presumed whenever the

opportunity exists for this violation to have played a role in the district court’s sentencing

decision.’” United States v. Paladino, 769 F.3d 197, 201 (3d Cir. 2014) (emphasis in

original) (quoting United States v. Adams, 252 F.3d 276, 289 (3d Cir. 2001)). Further,

the “discretionary element in the plain error analysis is satisfied where a violation of the

right of allocution has been established.” Id. at 201–02.

       Both Hubbard and his counsel had a full and fair opportunity to present mitigating

information at sentencing. Hubbard’s attorney argued several factors to the District

Court that she believed warranted leniency, such as his role as a father and husband.

Further, Hubbard himself engaged in a fulsome allocution.

                                              11
                                             i

       Hubbard claims the District Court limited his ability to present mitigating

information by refusing to seal the courtroom during the sentencing hearing. Shortly

after the hearing began, Hubbard’s counsel requested a sidebar. She informed the

District Court that an individual against whom Hubbard had cooperated and who had

allegedly threatened Hubbard was present in the courtroom. Counsel stated that she

intended to discuss the details of Hubbard’s cooperation with the Government and ask the

District Court to consider it in the § 3553(a) analysis, even though the Government had

not filed a motion for departure for substantial assistance under section 5K1.1 of the

sentencing guidelines. Counsel was concerned that this person’s presence would limit

her presentation. She stated that she neither wanted the individual removed nor the

sentencing continued, but suggested that the judge seal the courtroom. The District Court

responded, and counsel agreed, that it could be worse for the defendant to seal the

courtroom with the individual there.

       The District Court then appropriately denied the request. The person was a victim

of Hubbard’s fraudulent conduct, had been notified of the proceeding and had a right to

be present and be heard. See 18 U.S.C. § 3771; Fed. R. Crim. P. 32(i)(4)(B). In fact, his

lawyer spoke on his behalf regarding the effect of Hubbard’s fraudulent conduct.

Moreover, to address counsel’s concern, the District Court allowed her to make any

arguments regarding cooperation at sidebar and told her the information would be taken

into account in the Court’s § 3553(a) analysis. Hubbard’s attorney told the judge that

Hubbard consented to wear a wire during phone conversations and recorded various other

                                             12
conversations in an attempt to gather information against certain targets. When

explaining his consideration and analysis of the factors under § 3553(a), the District

Court stated that he had considered counsel’s request for a downward variance, including

the discussion at sidebar. (J.A. 265.)

                                              ii

       Lastly, Hubbard argues that the District Court effectively denied his right to a

meaningful allocution by interrupting and questioning him. Hubbard relies on the

Second Circuit’s decision in United States v Li, 115 F.3d 125 (2d Cir. 1997). The facts of

this case, however, are starkly different from those in Li, where the sentencing judge was

dismissive of the defendant throughout his allocution. Id. at 131–33. In that case, the

judge told Li that he was not going to listen to a lengthy allocution and repeatedly limited

the amount of time that the defendant could speak, ultimately ending the allocution,

stating that if the appeals court disagreed with his conduct, they could “send it back to me

and tell me how long I have to listen.” Id. Here, the District Court engaged in a

substantive colloquy with Hubbard, seeking clarification on his explanations and

exploring the veracity of his justifications for his conduct. (See, e.g., J.A. 245, 250, 252.)

See United States v. Covington, 681 F.3d 908, 910 (7th Cir. 2012). Notably, the District

Court did not terminate Hubbard’s allocution as was done in Li— here, at the advice of

his counsel, Hubbard ended his allocution. (J.A. 254.) Hubbard thus had a meaningful

opportunity to present mitigating information as required by Rule 32.




                                              13
                                          V

      For the foregoing reasons, we will affirm Hubbard’s conviction and judgment of

sentence.




                                         14
