    18‐3290‐cr
    United States v. Peralta


                               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 25th day of November, two thousand nineteen.

    PRESENT:
                       ROBERT D. SACK,
                       PETER W. HALL,
                       JOSEPH F. BIANCO,
                            Circuit Judges,



    UNITED STATES OF AMERICA,

                               Appellee,

                       v.                                          No. 18‐3290‐cr

    MARCO ANTONIO LAM PERALTA, AKA MARCO ANTONIO LAM,
    AKA TONY LAM, AKA ALEX LAM, AKA MARCO ANTONIO
    LAMPERALTA, AKA ANTHONY LAM, AKA MARCO LAM

                               Defendant‐Appellant,

    DIEGO WALTHER ANIBAL MEJIA PAREDES,

                               Defendant.



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Appearing for Appellee:                  MICHAEL P. DRESCHER (Gregory L. Waples, on
                                         the brief) for Christina E. Nolan, United States
                                         Attorney for the District of Vermont,
                                         Burlington, VT.

Appearing for Defendant‐Appellant:       DAVID J. WILLIAMS, Jarvis,       McArthur     &
                                         Williams, Burlington, VT.




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

of Vermont (Sessions, J.).

       UPON       DUE      CONSIDERATION,       IT    IS    HEREBY        ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

       Defendant‐Appellant Marco Antonio Lam Peralta (“Lam”) appeals from a

July 9, 2019, judgment, following a guilty plea, sentencing him to 120‐months

imprisonment. On appeal, Lam argues that the district court erred by denying

his motion to withdraw his guilty plea pursuant to Federal Rule of Criminal

Procedure 11(d)(2)(B). We assume the parties’ familiarity with the facts, record

of prior proceedings, and arguments on appeal, which we reference only as

necessary to explain our decision to affirm.

       The Federal Rules of Criminal Procedure permit a defendant to withdraw

a guilty plea before sentencing when “the defendant can show a fair and just

reason for requesting the withdrawal.”         Fed. R. Crim. P. 11(d)(2)(B).          In



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evaluating whether a defendant meets Rule 11(d)(2)(B)’s “fair and just” standard,

courts consider, inter alia: “(1) whether the defendant has asserted his or her legal

innocence in the motion to withdraw the guilty plea; (2) the amount of time that

has elapsed between the plea and the motion . . . ; and (3) whether the

government would be prejudiced by a withdrawal of the plea.” United States v.

Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting United States v. Schmidt, 373

F.3d 101, 102–03 (2d Cir. 2004)). Further, when a defendant asserts that the

decision to plead guilty was involuntary, the “defendant must raise a significant

question about the voluntariness of the original plea,” United States v. Torres, 129

F.3d 710, 715 (2d Cir. 1997), and “a fortiori the court must focus on voluntariness.”

United States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).

      “We review a district court’s denial of a motion to withdraw a guilty plea

for abuse of discretion and any findings of fact in connection with that decision

for clear error.”   United States v. Juncal, 245 F.3d 166, 170–71 (2d Cir. 2001)

(citation omitted). Applying these standards, we conclude that the district court

did not exceed the bounds of its discretion in denying Lam’s motion.

      Lam contends, inter alia, that the district court improperly weighed against

him the timeliness of his motion to withdraw his plea and that the court applied



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the wrong legal standard in evaluating both Lam’s claims of legal innocence and

prejudice to the government. Ultimately, Lam asserts that the totality of the

circumstances demonstrates that his guilty plea was not knowing and voluntary.

We are not persuaded.

      Although Lam argues there is a serious question as to the voluntariness of

his plea, the record in this case belies his contention. While he may have felt

significant pressure to choose between two unfavorable options, such pressure

does not rise to the level of coercion sufficient to render his guilty plea

involuntary. Moreover, Lam points to no other evidence suggesting that his

guilty plea was not voluntary.

      At Lam’s change of plea hearing, the court thoroughly reviewed the nature

of the charge, the potential penalties, and the rights that Lam was forfeiting by

pleading guilty.   It also provided Lam with many opportunities to confer

privately with his attorney, and it made sure that Lam agreed with the

government’s factual proffer. Further, when Lam later sought to withdraw his

plea, the court held an evidentiary hearing and explored Lam’s claim that his

attorney coerced his guilty plea. After considering testimony from both Lam’s

former attorney and Lam, the court found the attorney’s testimony credible and



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determined that the attorney did not “coerce or force [Lam] into pleading

guilty.” JA–461, 464.

      In reaching its decision, the district court noted explicitly that it “does not

doubt that [the] Attorney . . . strongly expressed his view to Defendant that

pleading guilty was his best option. However, this sort of counseling is not

coercion[.]” Id. at 465. The district court’s analysis comports with our precedent

that “defense counsel’s blunt rendering of an honest but negative assessment of

appellant’s chances at trial, combined with advice to enter the plea, [does not]

constitute improper behavior or coercion that would suffice to invalidate a plea.”

Juncal, 245 F.3d at 172.

      In addition, Lam did not sufficiently assert his innocence in his motion to

withdraw his plea. We have held that “self‐inculpatory statements made under

oath ‘carry a strong presumption of verity.’” United States v. Maher, 108 F.3d

1513, 1530 (2d Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Further, we require defendants to provide evidence supporting a claim of

innocence.    United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001).         “A

defendant’s bald statements that simply contradict what he said at his plea




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allocution are not sufficient grounds to withdraw the guilty plea.” Torres, 129

F.3d at 715 (citation omitted).

       Here, Lam presented no evidence supporting his claim of legal innocence.

Instead, Lam merely recounts that he expressed his innocence throughout his

arrest and court proceedings, except when he signed the plea agreement on

August 4, 2017, and when he changed his plea to guilty on August 14, 2017.

Without evidence supporting Lam’s assertion of innocence, therefore, the district

court properly gave Lam’s “bald” assertion little credit. Torres, 129 F.3d at 715;

see United States v. Gonzalez, 647 F.3d 41, 60 (2d. Cir. 2011) (finding no justification

for withdrawal when defendant “asserted in his affidavit that he wished to prove

his ‘legal innocence’ . . . and that he had ‘never wavered in his desire to prove

his legal innocence’ . . . [but] did not refer to anything that would corroborate a

claim of innocence”).

      Contrary to Lam’s argument, the district court did not hold Lam to an

incorrect “consistency” standard. Rather, the court found that Lam admitted

guilt under oath at his plea allocution and did not provide sufficient evidence to

overcome that earlier admission.




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       The district court, moreover, properly considered the timeliness of Lam’s

motion as a factor weighing “slightly” against the withdrawal of his guilty plea.

JA–463. The court acknowledged that “[c]ompared to other cases, [one month] is

not that long a period of time.” JA–462. Still, timeliness is only one of several

factors that a district court should consider in evaluating a motion to withdraw a

guilty plea. See Rivernider, 828 F.3d at 104. Even when defendants quickly

request to withdraw their guilty pleas, we have found such requests insufficient

when the defendant has not otherwise demonstrated grounds to justify

withdrawal.1       As Lam neither raises a significant question regarding

voluntariness nor supports his claim of legal innocence, the district court did not

abuse its discretion by weighing this factor again him.

       Finally, contrary to Lam’s argument, the district court applied the correct

legal standard in considering prejudice to the government. Lam points out that

the government has not pointed to any case‐specific prejudice. He argues that if

expending resources were sufficiently prejudicial, then Rule 11(d)(2)(B) would be

rendered superfluous, as every plea withdrawal necessarily requires the

government to expend resources for trial.

1This court has ruled similarly in other instances. See United States v. Scott, 569 F.
App’x. 55, 57 (2d Cir. 2014) (summary order); United States v. Desrosier, 431 F. App’x. 36,
37 (2d Cir. 2011) (summary order).
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      While we have found there to be case‐specific prejudice in some instances,

see, e.g., United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009), this court only

requires the government to show prejudice once the defendant demonstrates a

“fair and just” reason for withdrawal. Maher, 108 F.3d at 1529. Because Lam did

not meet his burden to demonstrate that his plea was involuntary, the

government was not required to show prejudice. Nonetheless, it was not an

abuse of discretion for the district court to consider that factor. See United States

v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (“The [g]overnment is not required

to show prejudice when opposing a defendant’s motion to withdraw a guilty

plea where the defendant has shown no sufficient grounds for permitting

withdrawal; however, the presence or absence of such prejudice may be

considered by the district court in exercising its discretion.”) (citation omitted).

      Lam’s argument also treats prejudice to the government as a dispositive

factor. But general prejudice would only render Rule 11(d)(2)(B) superfluous if

any showing of prejudice defeated a motion for withdrawal. Instead, courts

“exercise . . . discretion in balancing these competing concerns.” Maher, 108 F.3d

at 1529 (citation omitted).




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      Considering these factors, the district court did not abuse its discretion

when it denied Lam’s motion to withdraw his guilty plea. We have considered

Lam’s remaining arguments and find them to be without merit. The judgment of

the district court is AFFIRMED.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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