13-1640-cr
United States v. Poupart



                 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 12th day of May, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR.,
         DENNY CHIN,
         CHRISTOPHER F. DRONEY,
                  Circuit Judges.
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UNITED STATES OF AMERICA,
                  Appellee,
                       -v-                           13-1640-cr

RICHARD POUPART,
                       Defendant-Appellant.
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FOR APPELLEE:                    Anastasia E. King, Neeraj N.
                                 Patel, and Sandra S. Glover,
                                 Assistant United States
                                 Attorneys, for Deirdre M. Daly,
                                 United States Attorney for the
                                 District of Connecticut, New
                                 Haven, Connecticut.
FOR DEFENDANT-APPELLANT:         Lawrence D. Gerzog, Esq., New
                                 York, New York.
           Appeal from the United States District Court for
the District of Connecticut (Arterton, J.).
            UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.

            Defendant-appellant Richard Poupart appeals from a
judgment entered on February 22, 2013 in the United States
District Court for the District of Connecticut following
his plea of guilty to possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B).    The district court
sentenced him principally to 240 months' imprisonment.      On
appeal, Poupart challenges his conviction on the grounds
that his Sixth Amendment rights were violated and his
sentence was procedurally and substantively unreasonable.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues
on appeal.
A.   The Sixth Amendment Challenge
            Poupart first argues that his Sixth Amendment
rights were violated because the district court allowed him
to file a pro se motion to withdraw his guilty plea without
first conducting a proceeding pursuant to Faretta v.
California, 422 U.S. 806, 835 (1975).    We disagree.
     1.     Applicable Law

            We review a trial court's decision to allow a
defendant to waive his federal constitutional rights de
novo.     See United States v. Carmenate, 544 F.3d 105, 107
(2d Cir. 2008).    "While the Sixth Amendment guarantees a

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right to competent court-appointed counsel in criminal
cases," United States v. Culbertson, 670 F.3d 183, 192 (2d
Cir. 2012) (internal quotation marks omitted), defense
"[c]ounsel certainly is not required to engage in the
filing of futile or frivolous motions," United States v.
Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987).   In cases
where "the court has already replaced counsel more than
once . . . it is reasonable for the court to require an

intractable defendant either to proceed with the current
appointed lawyer, or to proceed pro se."   Culbertson, 670
F.3d at 193.

         When a defendant elects to represent himself, a
defendant "must be given a full and fair opportunity to
consider his options before waiving his Sixth Amendment

right [to counsel] in a knowing and voluntary manner."
Culbertson, 670 F.3d at 193; see also Faretta, 422 U.S. at
835 ("[T]o represent himself, the accused must knowingly

and intelligently forgo" the benefits associated with the
right to counsel. (internal quotation marks omitted)).
    2.   Application

         The district court was not required to conduct an
inquiry pursuant to Faretta because Poupart was never
without representation.   After defense counsel informed the

district court that she would be ethically prohibited from
complying with Poupart's requests, the district court

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allowed Poupart leave to file a motion to withdraw his
guilty plea pro se.   Poupart's attorney continued to
represent him for all other purposes, however, and the
district court even appointed an additional lawyer to act
as stand-by counsel on the pro se motion.
          Indeed, Poupart has not cited any case law for the
proposition that when a defendant has representation but
files a motion pro se a trial court must conduct a
proceeding under Faretta.   Rather, we note that it is a
common and simple solution for a district court to accept
pro se motions from a defendant with representation when
his counsel cannot file such motions in good faith.
Accordingly, we find no violation of Poupart's Sixth
Amendment rights.
B.   The Reasonableness Challenge
          Poupart's challenge to the procedural and
substantive reasonableness of his sentence also fails.
     1.   Applicable Law
          We review a sentence imposed by a district court
for procedural and substantive reasonableness.   United
States v. Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en
banc).
          A district court procedurally errs when it does
not consider the factors outlined in 18 U.S.C. § 3553(a).
Id. at 190.   Unless the record suggests otherwise, however,

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"we presume . . . that a sentencing judge has faithfully
discharged her duty to consider the statutory factors."

United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006),
abrogated on other grounds by Rita v. United States, 551
U.S. 338 (2007).
            A sentence imposed by the district court is
substantively unreasonable only if it "cannot be located
within the range of permissible decisions."     Cavera, 550
F.3d at 189 (internal quotation marks omitted).
Accordingly, we will set aside sentencing decisions only in
"exceptional cases," id., as we will not substitute our
judgment for that of the district court, Fernandez, 443
F.3d at 27.
    2.      Application

            The record does not support Poupart's argument
that the district court "merely imposed the maximum
guideline sentence."      The district court explicitly
considered the factors provided in 18 U.S.C. § 3553(a).       In
so doing, it determined, among other things, that the
seriousness of Poupart's offense could "hardly be
overstated," and Poupart's conduct was "devastating for the
victims."    (App. at 225).   The district court discussed
Poupart's history and characteristics, including the
hardships he suffered as a child and his poor health, but
concluded that protection of the public and Poupart's lack

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of remorse warranted a "lengthy sentence."    (App. at 226-
27).   Accordingly, we conclude that the district court

"discharged [its] duty to consider the statutory factors,"
Fernandez, 443 F.3d at 30, and find no procedural error.
          Nor do we find any merit in Poupart's claim that
the sentence was substantively unreasonable.    Poupart's
guidelines range was 262-327 months of imprisonment, but
the statutory maximum penalty for the offense of conviction
was 240 months.    Here, especially in light of Poupart's
history of sexually abusing children, including forcing a
13-year old victim to perform oral sex on him, sexually

assaulting two 14-year old victims, and creating some of
the child pornography that he possessed, the district court
was well within its discretion to impose the statutory

maximum penalty.   Hence, the sentence was "within the range
of permissible decisions," Cavera, 550 F.3d at 189
(internal quotation marks omitted), and we therefore find

no substantive error.
          We have considered Poupart's remaining arguments
and conclude they are without merit.    For the foregoing
reasons, we AFFIRM the judgment of the district court.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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