         10-0729-cr
         USA v. Pendergrass


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 14 th day of December, two thousand                                    and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   10-0729-cr
18
19       AARON PENDERGRASS,
20
21                                       Defendant-Appellant.
22
23
24       FOR APPELLANT:                  DEVIN McLAUGHLIN, Langrock, Sperry &
25                                       Wool, LLP, Middlebury, VT.
26
27       FOR APPELLEE:                   NANCY J. CRESWELL, Assistant United
28                                       States Attorney, (Gregory L. Waples,
29                                       Assistant United States Attorney, on the
30                                       brief), for Tristram J. Coffin, United
31                                       States Attorney for the District of
32                                       Vermont, Burlington, VT.
33
1         Appeal from the United States District Court for the
2    District of Vermont (Reiss, J.).
3
4          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7          Appellant Aaron Pendergrass appeals from a judgment of

8    the United States District Court for the District of Vermont

9    (Reiss, J.), entered on February 19, 2010, convicting

10   Pendergrass upon a plea of guilty to participating in a

11   conspiracy to distribute narcotics, in violation of 21

12   U.S.C. §§ 841(b)(1)(A), 846, involving in excess of 50 grams

13   of crack cocaine.   Pendergrass entered into a plea agreement

14   with the Government on July 22, 2009, in which he stipulated

15   that the charged conspiracy involved between 500 grams and

16   1.5 kilograms of crack, and agreed that he was “in fact,

17   guilty of the crime with which he [wa]s charged.”   App. 18-

18   19.   On appeal, he contends that the district court erred

19   insomuch as it denied his request to withdraw that plea of

20   guilty and proceed to trial.   We assume the parties’

21   familiarity with the underlying facts, the procedural

22   history, and the issues presented for review.

23         Pendergrass first argues that the district court abused

24   its discretion in denying his motion to withdraw his guilty

                                    2
1    plea because he presented a “fair and just” reason for doing

2    so, within the meaning of Fed. R. Crim. P. 11(d).

3    Specifically, Pendergrass contends that his guilty plea was

4    premised upon a misunderstanding of the Government’s

5    evidence against him.   Apparently Pendergrass was under the

6    mistaken impression, based on incorrect statements to him by

7    his attorneys, that the Government’s evidence included over

8    50 grams of crack cocaine that was purchased directly from

9    Pendergrass by confidential informants pursuant to

10   “controlled buy” operations.   In reality, the controlled

11   buys only yielded 48.11 grams of crack.   Another 12 grams

12   were recovered from a drug courier known as “Baby,” and,

13   because Pendergrass was not aware of this fact until his

14   plea allocution, and he asserts that he was not the source

15   of the 12 grams of crack recovered from Baby, he maintains

16   that his plea of guilty to a conspiracy involving more than

17   50 grams of crack cocaine should be withdrawn.

18       To assess whether a defendant has proffered a “fair and

19   just” reason for withdrawal of a guilty plea, Fed. R. Crim.

20   P. 11(d), “a district court should consider, inter alia: (1)

21   the amount of time that has elapsed between the plea and

22   motion; (2) whether the defendant has asserted a claim of



                                    3
1    legal innocence; and (3) whether the government would be

2    prejudiced by a withdrawal of the plea.”       United States v.

3    Doe, 537 F.3d 204, 210 (2d Cir. 2008).       The defendant bears

4    the burden of establishing that relief is warranted, and he

5    must do so with evidence.    See United States v. Hirsch, 239

6    F.3d 221, 225 (2d Cir. 2001).       “A defendant’s bald

7    statements that simply contradict what he said at his plea

8    allocution are not sufficient grounds to withdraw the guilty

9    plea.”    Id. (quoting United States v. Torres, 129 F.3d 710,

10   715 (2d Cir. 1997)).

11       Notwithstanding that five weeks elapsed between the

12   entry of Pendergrass’s guilty plea and his motion to

13   withdraw the plea, Pendergrass has not met his burden of

14   establishing a fair and just reason for withdrawing the

15   plea.    He contends that he has asserted a claim of “legal

16   innocence” of the crime charged, insomuch as he denies

17   responsibility for the 12 grams of crack recovered from

18   Baby, but he has never made any showing — either to the

19   district court, or to this Court — that his stipulation that

20   the conspiracy involved between 500 grams and 1.5 kilograms

21   of crack was incorrect when made.       Whether the 12 grams of

22   crack recovered from Baby is considered or not, the


                                     4
1    Government was prepared to present at trial (and, at

2    sentencing, did so present) that the scope of the conspiracy

3    involved well in excess of 50 grams of crack.    Pendergrass

4    has presented absolutely no evidence to the contrary.

5        And, most importantly, during his plea allocution

6    Pendergrass was presented with all of the Government’s

7    evidence against him — including that only 48.11 grams of

8    crack were recovered directly from Pendergrass, and that the

9    Government was prepared to prove “a much larger quantity . .

10   . than 60 grams” at trial — and acknowledged that the

11   recitation of facts was accurate, and that he wished to

12   plead guilty.   App. 37, 41.   His subsequent conclusory

13   assertions, through counsel, that he is innocent of the

14   crime charged, in no way impugn the validity or accuracy of

15   that plea, for “a change of heart prompted by [defendant’s]

16   reevaluation of either the Government’s case against him or

17   the penalty that might be imposed is not a sufficient reason

18   to permit withdrawal of a plea.”    United States v. Gonzales,

19   970 F.2d 1095, 1100 (2d Cir. 1992).

20       Pendergrass next argues that the district court should

21   have permitted him to withdraw his guilty plea because it

22   was the product of ineffective assistance of counsel.


                                    5
1    Although “in most cases a motion brought under [28 U.S.C.] §

2    2255 is preferable to direct appeal for deciding claims of

3    ineffective assistance,” Massaro v. United States, 538 U.S.

4    500, 504 (2003), there are circumstances in which an

5    ineffective assistance claim can be resolved “beyond any

6    doubt” and “in the interest of justice,” United States v.

7    Gaskin, 364 F.3d 438, 468 (2d Cir. 2004).

8        We do so here.    Even assuming, arguendo, that

9    Pendergrass’s trial attorneys were constitutionally

10   deficient in telling Pendergrass that the amount of crack

11   involved in the controlled buys was greater than 50 grams,

12   Pendergrass cannot establish that, but for that error, “he

13   would not have pled guilty and would have proceeded to

14   trial.”    United States v. Arteca, 411 F.3d 315, 320 (2d Cir.

15   2005).    Taken in its totality, the record does not

16   demonstrate with any reasonable probability that Pendergrass

17   would have proceeded to trial had he known that the

18   controlled buys only amounted to 48.11 grams of crack, in

19   light of the following: (1) Pendergrass knowingly and

20   voluntarily entered a plea of guilty after the Government

21   marshaled its evidence, including the amount of crack

22   obtained directly from Pendergrass pursuant to the


                                    6
1    controlled buys; (2) Pendergrass received a three-level

2    reduction for acceptance of responsibility that he would

3    have lost had he proceeded to trial; (3) two of

4    Pendergrass’s co-conspirators had pled guilty and agreed to

5    testify against him; and (4) the evidence of Pendergrass’s

6    guilt, most of which has never been contested by

7    Pendergrass, is overwhelming.       See, e.g., id. at 321-22.

8    Accordingly, we conclude that there is no reasonable

9    probability that, but for counsels’ alleged errors,

10   Pendergrass would have proceeded to trial.

11       We have considered Pendergrass’s remaining arguments

12   and find them to be without merit.       For the foregoing

13   reasons, the judgment of the district court is hereby

14   AFFIRMED.

15
16                              FOR THE COURT:
17                              Catherine O’Hagan Wolfe, Clerk
18




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