                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2004

USA v. Ritter
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2604




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"USA v. Ritter" (2004). 2004 Decisions. Paper 912.
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                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                         NO. 02-2604
                                         __________

                            UNITED STATES OF AMERICA

                                             v.

                                CHRISTOPHER RITTER,
                                               Appellant
                                     _________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 98-cr-00131-1)
                      District Judge: Honorable Herbert J. Hutton
                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 25, 2004
               Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                (Filed    March 26, 2004 )

                                         __________

                                          OPINION
                                         __________


RENDELL, Circuit Judge.

       Christopher Ritter appeals the District Court’s Order denying his habeas corpus

claim (Petitioner’s Motion to Vacate, Set Aside or Correct a Sentence pursuant to

28 U.S.C. § 2255). Ritter contends that he was entitled to a hearing on his claim that his
guilty plea was induced by his attorney’s false assurances that his sentence would not

exceed five years. He also contends that his plea to the charge of aiding and abetting

using or carrying a firearm during and in furtherance of a crime of violence was not

knowing and voluntary, and in any event lacks a factual basis. Further, and in response to

the inquiry of a panel of this Court in issuing the Certificate of Appealability, Ritter

suggests that he may be entitled to a remand to the District Court to explore the issue of

waiver and cause and prejudice, although he urges that the government’s failure to raise

the affirmative defense of procedural default below forecloses its consideration on appeal.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and

28 U.S.C. § 2255 and we exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.




                                              I.

       Ritter was charged with numerous federal criminal offenses based upon a series of

violent robberies and burglaries of residences and businesses in Pennsylvania and New

Jersey, involving a loss to victims of over $1 million in antiques, coins, jewelry, and other

valuables. Ritter, who worked in the antique business, used his knowledge of the

whereabouts and value of goods owned by his associates in the antiques trade and

directed his co-conspirators to these locations, identifying items to steal.

       Ritter was indicted with one count of Hobbs Act robbery conspiracy, one count of

conspiracy to commit interstate transportation of stolen property, three counts of Hobbs



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Act robbery, one count of using and carrying a firearm in furtherance of a violent crime,

and three counts of interstate transportation of stolen property. He entered a guilty plea to

all counts. At sentencing, the District Court granted a downward departure pursuant to

section 5K1.1 of the sentencing guidelines, and sentenced Ritter to 196 months’

incarceration, three years’ supervised release, a $900 mandatory special assessment, and

$443,130 in restitution.

       In granting the Certificate of Appealability, a motions panel of this Court queried

whether one of Ritter’s issues was procedurally defaulted on direct appeal, and whether

Ritter could overcome such default by demonstrating cause and prejudice. Ritter

contends that it was improper for procedural default to have been raised sua sponte as it

was the government’s obligation to raise and preserve the defense. We decline Ritter’s

invitation to resolve this question because, in any event, it is clear that his underlying

claims lack merit.




                                              II.

       Ritter finds fault with the manner in which the District Court rejected his

contention that ineffective assistance of his counsel tainted his guilty plea. In particular,

Ritter argues that the District Court improperly relied upon the plea colloquy, when it

should have considered Ritter’s affidavits and held a hearing at which evidence could be

adduced. Ritter focuses on the fact that, during his colloquy, he understood the guideline



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range before departure, but had been led astray by his counsel as to the effect of the

departure. He further contends that the papers he filed in the District Court demonstrate

that he was assured that his sentence would be no more than five years, based on

downward departures attributable to his plea and cooperation, and other factors.

       A district court’s decision to deny a hearing on a § 2255 petition is reviewed for

abuse of discretion. Gov’t of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.

1985). Section 2255 provides that a hearing on a defendant’s petition is not required

where “the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief.” The District Court here conclusively so found. Ritter

adduced no proof that he was promised or assured of a specific sentence, but, rather, that

counsel gave him his “best estimate” of what sentence might be given if he pled guilty,

namely, five years in prison. The plea agreement and the record of the change of plea

hearing are replete with references to the fact that the District Court would make the

determinations with respect to his sentence under the sentencing guidelines, that the

District Court could decline to follow recommendations, and that no promises had been

made with respect to the sentence that the District Court would impose. The District

Court also advised Ritter that the filing of a § 5K1.1 motion was at the sole discretion of

the government, with the District Court having limited ability to review its refusal to file

such a motion. In addition, the District Court specifically asked Ritter whether anyone

had advised him that the District Court would be lenient at the time of sentencing; Ritter



                                            -4-
responded “no.”

       Given the record, the District Court did not abuse its discretion in denying Ritter’s

petition for an evidentiary hearing. Whatever counsel had told Ritter, clearly there was no

prejudice because Ritter was fully advised at the time of the taking of the plea that the

District Court was not party to an agreement or promise of any kind.

       With respect to Ritter’s contention that his plea to the charge of using or carrying a

firearm during and in furtherance of a crime of violence was not knowing and voluntary,

again, the transcript from the sentencing hearing proves to the contrary. A lengthy

sentencing hearing was held on March 4, 1999, at which Ritter did not advise the District

Court of any promise purportedly made by counsel. And, after the District Court had

imposed the sentence of 196 months, the Court inquired of the defense if there were any

questions, and Ritter had no questions for the Court.

       Ritter also attacks the alleged voluntary nature of the plea because he argues it

lacked a factual basis. Rule 11(f) provides that “[n]otwithstanding the acceptance of a

plea of guilty, the court should not enter a judgment . . . without making such inquiry as

shall satisfy it that there is a factual basis for the plea.” Fed. R.Crim. P. 11(f) (2001). The

District Court’s finding of a factual basis for a plea is reviewed for an abuse of discretion.

United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000). Ritter’s claim is specifically

leveled at the charge of aiding and abetting the use and carrying of a firearm in

connection with the home invasion robbery of a coin dealer. We note that Ritter did not



                                             -5-
raise this argument before the trial court, nor on direct appeal. Yet even were it properly

preserved, it has no merit.

       Under 18 U.S.C. § 2(a), “[w]hoever commits an offense against the United States

or aids, abets, counsels, commands, induces or procures its commission, is punishable as

a principal.” Liability for aiding and abetting requires proof that the underlying crime

occurred and that the defendant knew of that crime and sought to accomplish it. See

United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002). Mere knowledge of the crime

is not enough; rather, the government must show that the defendant had the specific intent

to facilitate the crime. Id. In Gordon, we held that an aiding and abetting violation of

§ 924(c) does not require that the defendant possessed or controlled the weapon so long

as the defendant’s actions were “sufficiently ‘intertwined with, and his criminal

objectives furthered by’ the actions of the participant who did carry and use the firearm.”

Id. (citing United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999)). We have no

difficulty concluding that the record provides a firm basis for Ritter’s aiding and abetting

conviction.

       The evidence of Ritter’s knowledge of the violent nature of his associates and that

the robberies were conducted at gunpoint, belies Ritter’s claims that there was no factual

basis for his conviction. Ritter regularly had conversations with these associates after the

commission of their crimes, and was made aware of their modus operandi. Ritter knew

that during these dangerous home invasions, the victims were treated in a violent manner


                                            -6-
and were at times held at gunpoint. There is no question but that Ritter’s actions were

intertwined with and his criminal objectives furthered by his associates who carried and

used a firearm. Given his knowledge that guns were used by his associates and his

specific intent to make the underlying crimes succeed, Ritter’s contention that there was

no basis for his plea to aiding and abetting is remarkable, and unsuccessful.




                                            III.

       Accordingly, we will AFFIRM the Order of the District Court.




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