     14-0203-cr
     United States v. Cook 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 9th day of September, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-0203
16
17       MARCEL MALACHOWSKI,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ROBIN C. SMITH, LAW OFFICE OF
22                                             ROBIN C. SMITH, San Rafael,
23                                             California.
24
25       FOR APPELLEE:                         PAUL D. SILVER (with Jeffrey C.
26                                             Coffman on the brief) for
27                                             Richard S. Hartunian, United
28                                             States Attorney for the Northern

                                                  1
 1                              District of New York, Albany,
 2                              New York.
 3
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Northern District of New York (McAvoy, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Marcel Malachowski appeals from the judgment of the
13   United States District Court for the Northern District of
14   New York (McAvoy, J.), sentencing him to 178 months of
15   imprisonment to run concurrently with the 78-month prison
16   sentence imposed for separate offenses.1 We assume the
17   parties’ familiarity with the underlying facts, the
18   procedural history, and the issues presented for review.
19
20        Malachowski was prosecuted for his role in a continuing
21   criminal enterprise that smuggled and subsequently
22   distributed thousands of kilograms of marijuana into the
23   United States from Canada. A. 87. He entered a plea of
24   guilty to each count of the indictment. A. 88-105. On
25   appeal, Malachowski challenges the district court’s denial
26   of his motion to withdraw his guilty plea on the ground of
27   procedural defects. We review a district court’s denial of
28   a motion to withdraw a guilty plea for an abuse of
29   discretion. United States v. Carreto, 583 F.3d 152, 157 (2d
30   Cir. 2009).
31
32        Malachowski first contends that because he was
33   inadequately advised that count three (continuing criminal
34   enterprise) carried a mandatory minimum sentence of 20 years
35   of imprisonment, his plea was involuntary. At the plea
36   colloquy, the district court explicitly asked the prosecutor
37   to advise Malachowski “what the maximum or any minimum
38   penalty would be for the count involved.” A. 110. In
39   response, the prosecutor informed Malachowski that for
40   “[c]ount [t]hree, the continuing criminal enterprise, the
41   maximum term of imprisonment is a mandatory 20 years, up to


         1
           Malachowski separately appealed   the sentence imposed
     based on his gun-related offenses and   oral argument with
     respect to this appeal, United States   v. Malachowski, No.
     13-0443, was heard in tandem with the   present case.
                                  2
 1   life.” A. 110-11. Malachowski argues that because the
 2   prosecutor did not explicitly use the word “minimum,” his
 3   plea was neither knowing nor voluntary. Since Malachowski
 4   did not raise this particular objection in the district
 5   court, the plain error standard applies to his claim. See
 6   United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
 7   (“Rule 11 violations that are not objected to at the time of
 8   the plea are subject to plain error review . . . .”). And
 9   “to show that a Rule 11 violation was plain error, the
10   defendant must demonstrate that there is a reasonable
11   probability that, but for the error, he would not have
12   entered the plea.” Id. (internal quotation marks omitted).
13
14        Malachowski’s contention is without merit. In the
15   context of the prosecutor’s statement, “mandatory” clearly
16   modifies “20 years,” especially considering that the
17   prosecutor was being asked to advise Malachowski as to the
18   minimum and maximum penalties for count three. See United
19   States v. Cook, 722 F.3d 477, 482 (2d Cir. 2013) (noting
20   that “[t]he most logical understanding” of the plea colloquy
21   at issue foreclosed defendant’s Rule 11 challenge).
22   Malachowski also cites his own counsel’s motion for a
23   downward departure, which, according to Malachowski,
24   signified that the potential sentence carried no mandatory
25   minimum. A. 221. To the extent such a claim suggests
26   counsel was ineffective, Malachowski suffered no prejudice
27   because the district court promptly reiterated: “You’re
28   right and I read [the motion] and if we weren’t dealing with
29   a statutory mandatory minimum, those points would be key.”
30   Id.2 Malachowski’s argument must accordingly be rejected,
31   especially in view of the steep burden he must carry.
32
33        Malachowski also complains that the government’s
34   proposed plea agreement prior to his entry of his guilty
35   plea required that he stipulate to a firearms increase,
36   pursuant to Section 2D1.1(b)(1) of the Sentencing
37   Guidelines. A. 72. According to Malachowski, the only


         2
           Moreover, because Malachowski entered his plea of
     guilty pro se and counsel at this point was operating only
     as standby counsel before being reappointed, Malachowski is
     precluded from bringing an ineffective assistance claim
     arising from this conduct. See United States v. Morrison,
     153 F.3d 34, 55 (2d Cir. 1998) (“[W]ithout a constitutional
     right to standby counsel, a defendant is not entitled to
     relief for the ineffectiveness of standby counsel.”).
                                  3
 1   basis for this stipulation was the statement of his co-
 2   defendant, Sean Herrmann, that Malachowski placed a gun to
 3   Herrmann’s head, a statement that Herrmann had recanted. A.
 4   223. Malachowski believes that the stipulation in his
 5   contemplated plea agreement violated his due process rights.
 6
 7        This argument is erroneous for two independent reasons.
 8   It is undisputed that the proposed plea agreement was
 9   rejected by Malachowski because he refused to agree to the
10   firearms stipulation. A. 223. It is well-settled that
11   criminal defendants have “no constitutional right to plea
12   bargain.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
13   So, once the government withdrew its plea offer, the
14   government had no obligation to re-offer Malachowski the
15   same deal to account for the falsity in Herrmann’s
16   statement. See United States v. Gonzalez-Vazquez, 219 F.3d
17   37, 42 (1st Cir. 2000) (“[T]he government was under no
18   obligation to leave its original plea offer open.”). More
19   importantly, Malachowski’s assertion that Herrmann’s
20   statement was the only basis for the firearms enhancement is
21   belied by his counsel’s recommendation that Malachowski’s
22   gun possession sentence run concurrently, arguing in effect
23   that Malachowski’s possession of firearms was relevant
24   conduct to the continuing criminal enterprise at issue in
25   this case. A. 218-19.
26
27        Malachowski’s claim that counsel was ineffective for
28   failing to withdraw his guilty plea once it became clear
29   that Herrmann’s statement was false is not cognizable on
30   direct appeal. See Massaro v. United States, 538 U.S. 500,
31   504 (2003) (“[I]n most cases a motion brought under § 2255
32   is preferable to direct appeal for deciding claims of
33   ineffective assistance.”); United States v. Morris, 350 F.3d
34   32, 39 (2d Cir. 2003) (highlighting this Circuit’s “baseline
35   aversion to resolving ineffectiveness claims on direct
36   review”) (internal quotation marks omitted).
37
38        Finally, Malachowski argues that the Fifth Amendment
39   prohibition on Double Jeopardy was violated because counts
40   five through 13 charged him with nine different importation
41   charges, at different times, and counts 16 through 24
42   charged him with nine different distribution charges, again
43   during separate time periods. A. 36-46. We review double
44   jeopardy claims de novo. United States v. McCourty, 562
45   F.3d 458, 469 (2d Cir. 2009). Malachowski’s claim is
46   foreclosed by Blockburger v. United States, 284 U.S. 299,
47   301 (1932), which held that “distinct and separate sales

                                  4
 1   made at different times” constituted distinct offenses. See
 2   also United States v. Estrada, 320 F.3d 173, 180 (2d Cir.
 3   2003) (“A double jeopardy claim cannot succeed unless the
 4   charged offenses are the same in fact and in law.”)
 5   (emphasis added). And this result is dispositive of
 6   Malachowski’s multiplicity claim, which also requires that
 7   the charged offenses be the same in law and fact. United
 8   States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006).
 9
10        For the foregoing reasons, and finding no merit in
11   Malachowski’s other arguments, we hereby AFFIRM the judgment
12   of the district court.
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16




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