18-2183
United States v. Frazier

                            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
5th day of March, two thousand twenty.

Present:
            DEBRA ANN LIVINGSTON,
            RICHARD J. SULLIVAN,
            WILLIAM J. NARDINI,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                  v.                                                18-2183

MELVIN FRAZIER, AKA ROC,

                  Defendant-Appellant.
_____________________________________

For Appellee:                              CHARLES M. KRULY, Assistant United States Attorney,
                                           for James P. Kennedy, Jr., United States Attorney for
                                           the Western District of New York, Buffalo, NY

For Defendant-Appellant:                   VIVIAN SHEVITZ, South Salem, NY

         Appeal from a judgment of the United States District Court for the Western District of New

York (Geraci, C.J.).


                                                 1
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Melvin Frazier appeals from a judgment imposed on July 10, 2018, sentencing him to 188

months of imprisonment for conspiracy to possess with intent to distribute 100 grams or more of

heroin.        Prior to entering judgment, the district court denied Frazier’s motion to withdraw his

guilty plea, rejecting Frazier’s arguments that the plea was the result of a mutual mistake as to his

career offender status, that he received ineffective assistance of counsel, and that the government

breached the plea agreement by advocating for a sentence based on a revised drug quantity

calculation. Frazier contends that this was error, and also argues that the district court’s findings

as to drug quantity and obstruction of justice were insufficiently supported.         We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          I.        Plea Withdrawal

          Frazier contends that (1) he and the government were mutually mistaken as to his career

offender status; (2) that he received ineffective assistance of counsel; and (3) that the government

breached the plea agreement.        Each of these, he argues, independently required the district court

to permit the withdrawal of his guilty plea.     “A defendant may withdraw a plea of guilty . . . after

the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and

just reason for requesting the withdrawal.”      Fed. R. Crim. P. 11(d)(2)(B). A denial of a motion

to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Albarran, 943 F.3d

106, 117 (2d Cir. 2019).          “We review interpretations of plea agreements de novo and in

accordance with principles of contract law.” United States v. Wilson, 920 F.3d 155, 162 (2d Cir.

2019) (citation omitted).



                                                    2
        We turn first to Frazier’s argument that the mutual mistake regarding his career offender

status contained in the plea agreement required the district court to permit him to withdraw his

plea.   We disagree. The government does not dispute that both parties assumed, incorrectly,

that Frazier was a career offender and calculated his sentence based on that inaccurate assessment.

Nevertheless, to rescind a plea agreement and permit the withdrawal of a guilty plea based on such

mutual mistake, Frazier must show that “the resulting imbalance in the agreed exchange is so

severe that he can not fairly be required to carry it out.”   Restatement (Second) of Contracts § 152

cmt. c (1981). He has not made such a showing here.             Frazier ultimately received a sentence

within the range provided for in the plea agreement and continued to receive other benefits from

the plea bargain, such as the dismissal of other charges.      Under these circumstances, the district

court did not abuse its discretion in rejecting Frazier’s motion to withdraw based on mutual

mistake.

        Next, Frazier contends that his counsel was ineffective, rendering his plea involuntary.

See United States v. Arteca, 411 F.3d 315, 321 (2d Cir. 2005).      To prevail on such a claim, Frazier

must “show[] that accurate information would have made a difference in his decision to enter a

plea.” Id.; see also Lee v. United States, 137 S. Ct. 1958, 1965 (2017).          Frazier fails on this

point as well. He offers no evidence, beyond his own post hoc conclusory assertions, that he

would have proceeded to trial if he had known that he was not a career offender.       “Courts should

not upset a plea solely because of post hoc assertions from a defendant about how he would have

pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” Lee, 137 S. Ct. at 1967.        Frazier

offers no contemporaneous evidence to substantiate his claim that he would have refused to plead

guilty had he known that he was not a career offender.            To the contrary, Frazier expressly



                                                    3
disclaimed a desire to go to trial during his statements as sentencing, explaining that, “if [he] had

known [he] wasn’t a career offender, [he’s] not saying [he] would not [have] pleaded out, but [he]

would have definitely tried to get a better deal.” App’x 62. Accordingly, the district court did

not “abuse its discretion in discrediting [Frazier’s] later self-serving and contradictory testimony

as to whether a plea was knowingly and intelligently made.” United States v. Juncal, 245 F.3d

166, 171 (2d Cir. 2001).

       Frazier further argues that the government breached the plea agreement “by advocating a

higher [drug] quantity than that to which it had agreed . . . , i.e., 100–400 grams [of heroin].”

Def.-Appellant’s Br. 50. We have recently reiterated that vacatur of a plea agreement is proper

only where the government’s actions upset a defendant’s “reasonable expectations.” Wilson, 920

F.3d at 165; see also United States v. Vaval, 404 F.3d 144, 155 (2d Cir. 2005); United States v.

Brody, 808 F.2d 944, 948 (2d Cir. 1986); Paradiso v. United States, 689 F.2d 28, 31 (2d Cir. 1982).

Here, to the extent the government breached the plea agreement by advocating for a sentence based

on a higher drug quantity, the government still “comport[ed] with the reasonable understanding

and expectations of the defendant as to the sentence for which he had bargained” because the

government continued to advocate for a sentence of 188 months, within the range provided for by

the plea agreement.    Vaval, 404 F.3d at 156 (citation omitted).       Thus, Frazier suffered “no

meaningful detriment,” Brody, 808 F.2d at 948, rendering the breach “technical” and the remedy

he seeks unwarranted, Paradiso, 689 F.2d at 30–31.       And, while the government did ultimately

advocate for a higher sentence based on Frazier’s intimidation of a government source and

Frazier’s conduct at the Fatico hearing, the plea agreement expressly permitted the government to

“modify its position with respect to any sentencing recommendation or sentencing factor under the

Guidelines . . . in the event that subsequent to this agreement the government receives previously



                                                 4
unknown information.”        Gov’t App’x 12.     Accordingly, Frazier was well aware that his post-

plea attempts to minimize his role in the drug-trafficking conspiracy and to benefit from his earlier

pressuring of the government’s source could affect the government’s recommendation.           In sum,

the district court did not abuse its discretion in denying Frazier’s motion to withdraw based on the

government’s breach of the plea agreement because Frazier suffered no meaningful detriment as a

result.

          II.    Sentencing Findings

          Finally, Frazier contends that the district court’s findings at sentencing related to

obstruction of justice and drug quantity were unsubstantiated. Not so. A district court’s factual

findings related to obstruction of justice and drug quantity made at sentencing are reviewed for

clear error. United States v. Pena, 751 F.3d 101, 105 (2d Cir. 2014) (obstruction of justice);

United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (drug quantity). Ultimately, both of the

district court’s factual findings that Frazier now challenges turn on the district court’s decision to

credit a government source over Frazier after both testified during a Fatico hearing.          When

“credibility determinations are at issue, we give particularly strong deference to a district court

finding.” United States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012) (citation omitted).           The

Supreme Court has observed that “when a trial judge’s finding is based on his decision to credit

the testimony of one of two or more witnesses, each of whom has told a coherent and facially

plausible story that is not contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564,

575 (1985).

          Frazier points to no extrinsic evidence that directly contradicts the source’s testimony and

fails to identify any substantive internal inconsistencies in his statements. Specifically, looking



                                                   5
at the district court’s findings as to obstruction of justice, the source’s testimony offered ample

basis to conclude that Frazier had intimidated him: not only did the source appear scared while

testifying, but he was aware of Frazier’s gang affiliation, his violent criminal history, and threats

Frazier had made towards the source and his family.           Accordingly, the district court properly

resolved any conflict between the competing testimony of Frazier and the source by crediting the

source.

          As to the court’s drug quantity findings, Frazier relies primarily on United States v.

Pauling, 924 F.3d 649, 657–58 (2d Cir. 2019). But that case does not support Frazier’s position.

Not only did Pauling involve a higher burden of proof, as it reviewed a conviction following trial

rather than a sentencing finding, but the government there relied on brief and vague statements not

uttered by either member of a conspiracy and general assertions of an ongoing drug-trafficking

relationship to establish a specific drug quantity. Id. at 659–61.       Conversely, here, the district

court had specific testimony from a co-conspirator and, to the extent it extrapolated total drug

quantity, it did so in a manner consistent with our prior cases. See, e.g., United States v. Blount,

291 F.3d 201, 215–16 (2d Cir. 2002); United States v. Adames, 727 F. App’x 12, 14 (2d Cir. 2018).

          In sum, the district court did not clearly err by crediting the source or by relying on his

testimony to support its findings as to drug quantity and obstruction of justice.

                                           *       *      *

          We have considered Frazier’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                   6
