15-1579-cr
United States v. Anderson

                     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.

         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 22nd day of January, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             PETER W. HALL,
                                    Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    United States of America,
             Appellee,

                 -v.-                                               15-1579-cr

    Keyewanie    Blackledge,    AKA    Sealed
    Defendant 1, AKA Monster, Abdul Abdullah,
    AKA Sealed Defendant 2, AKA Dula, AKA
    Abdul Rahm Abdullah, Clement Boateng, AKA
    Sealed Defendant 4, AKA Clem, Frank
    Boateng, AKA Sealed Defendant 5, AKA
    White, Troy Carter, AKA Sealed Defendant
    6, Malik Crocker, AKA Sealed Defendant 7,
    AKA Bread, Shondell Crocker, AKA Sealed
    Defendant 8, AKA Dell, Jonathan Cruz, AKA
    Sealed Defendant 9, AKA Fatboy Fresh,
    Jovan Fields, AKA Sealed Defendant 10,


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AKA Mike Jones, Mark Frierson, AKA Sealed
Defendant 11, Glen Gilliard, AKA Sealed
Defendant 12, AKA Smoke, Daivon Henry,
AKA Sealed Defendant 13, AKA Vontt,
Larrington Henry, AKA Sealed Defendant
14, AKA Bebo, Markeen Jordan, AKA Sealed
Defendant 15, AKA Kingo, Mario Martinez,
AKA Sealed Defendant 16, AKA Dot, Maurice
Martinez, AKA Sealed Defendant 17, AKA
Young, Nathaniel Medina, AKA Sealed
Defendant 18, AKA Nate, Robert Pizarro,
AKA Sealed Defendant 19, AKA Drew, AKA
True, Raymond Rodriguez, AKA Sealed
Defendant 20, AKA Ray, Joshua Torres, AKA
Sealed Defendant 21, AKA Looney, Benjamin
Townes, AKA Sealed Defendant 22, AKA
Benny,   Shaquan   Wilson,   AKA   Sealed
Defendant 23, AKA Shay, Bertrille Lucas,
AKA Kiki,

          Defendants,

Kwame Anderson, AKA Sealed Defendant 3,
AKA Kwam,

          Defendant - Appellant.

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FOR APPELLANT:                Peter J. Tomao, Esq., Garden
                              City, New York.

FOR APPELLEE:                 Mollie Bracewell, Assistant
                              United States Attorney for Joon
                              H. Kim, acting United States
                              Attorney for the Southern
                              District of New York
                              (Christopher J. Dimase, Daniel
                              B. Tehrani, on the brief), New
                              York, New York.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Stein, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be

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AFFIRMED with respect to Anderson’s principal sentence of 84
months in prison and VACATED AND REMANDED for the limited
purpose of re-sentencing on the term of supervised release.

     Kwame Anderson appeals from the judgment of the United
States District Court for the Southern District of New York,
sentencing him principally to 84 months’ incarceration and
five years’ supervised release following his plea of guilty
to the use of a firearm during and in relation to a
conspiracy to distribute controlled substances. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Anderson was arrested in 2013 for his involvement in
the Burnside Money Getters (“BMG”), a criminal drug gang in
the Bronx. A wiretap investigation revealed that Anderson
had acquired firearms for violent disputes and participated
in multiple shootings. Anderson was charged in Superseding
Indictment S2 with one count of conspiracy to distribute
controlled substances and one count of using, possessing,
carrying, brandishing, and discharging firearms during and
in relation to a crime of violence, namely, a racketeering
conspiracy involving the BMG.   On May 8, 2014, Anderson
consented to the filing of Superseding Information S5, and
pled guilty before Magistrate Judge Netburn to the sole
count of brandishing a firearm during and in relation to a
drug trafficking conspiracy in violation of 18 U.S.C. §
924(c)(1)(A)(ii). The district court accepted the plea on
May 14, 2014.

     Six months later, Anderson moved to withdraw his plea
under Rule 11. See Fed. R. Crim. P. 11(d)(2)(B). He
contended that his plea was not knowing and voluntary
chiefly because he was allegedly given misleading
information by counsel. He also stated that he was innocent
of the charge. The district court denied the motion and
sentenced Anderson to the mandatory minimum sentence and a
five year term of supervised release. We review a denial of
a motion for plea withdrawal for abuse of discretion. See
United States v. Torres, 129 F.3d 710, 714-15 (2d Cir.
1997).

     A district court has discretion to allow a defendant to
withdraw a guilty plea if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim.
P. 11(d)(2)(B). There is no right to withdraw an accepted

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plea, and “[t]he defendant has the burden of demonstrating
valid grounds for withdrawal.” United States v. Gonzalez,
647 F.3d 41, 56 (2d Cir. 2011). A guilty plea may be
revisited if “the defendant has raised a significant
question about the voluntariness of the original plea.”
United States v. Schmidt, 373 F.3d 100, 103 (2d Cir. 2004)
(alteration and internal quotation marks omitted); see also
Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005)(“[A]
guilty plea violates due process and is therefore invalid if
not entered voluntarily and intelligently.”). However,
“bald statements that simply contradict what [the defendant]
said at his plea allocution are not sufficient grounds to
withdraw [a] guilty plea.” Torres, 129 F.3d at 715. In
evaluating withdrawal, courts must balance the defendant’s
proffered reasons against the strong interest in the
“finality of guilty pleas and the presumption that sworn
statements made in open court are true.” Gonzalez, 647 F.3d
at 57.

     Anderson contends that his plea was not knowing and
voluntary because Magistrate Judge Netburn did not make an
express finding that the plea was “knowing and voluntary” at
the plea allocution. He suggests that the court could not
have done so because it was clear from contradictory
statements during the plea colloquy that Anderson was
confused about the nature of the charged criminal activity
and did not understand the written statement prepared by his
attorney.

     The court did not abuse its discretion in finding that
Anderson’s plea was voluntary and intelligent. The
magistrate judge’s choice to formulate her findings without
that particular phrase is of no moment; courts have
flexibility in how they accept a plea and may do so in their
“own words.” United States v. Maher, 108 F.3d 1513, 1521
(2d Cir. 1997); see also McCarthy v. United States, 394 U.S.
459, 467 n. 20 (1969) (In Rule 11 inquiries, “matters of
reality, and not mere ritual, should be controlling.”).
Likewise, the district court did not abuse its discretion in
finding no impropriety in Anderson using a prepared script
at his plea hearing, particularly where Anderson stated
under oath that the document was “true and complete” and
that he “agree[d] with everything that [he] ... read.” J.
App’x at 258; see, e.g., Ramos v. United States, 2010 WL
4922521, at *4 (S.D.N.Y. Nov. 24, 2010).


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     “What is essential, however, is that the court
determine by some means that the defendant actually
understands the nature of the charges.” Maher, 108 F.3d at
1521. The magistrate judge adhered to all Rule 11
requirements for a plea colloquy, advising Anderson of his
“right to plead not guilty, the rights waived by pleading
guilty, and other specific consequences of pleading guilty,
such as the maximum penalties he face[d].” United States v.
Youngs, 687 F.3d 56, 59 (2d Cir. 2012); see also Fed. R.
Crim. P. 11(b); J. App’x at 247-53. Moreover,
notwithstanding any initial confusion over the phrase
“agreement,” Anderson unequivocally admitted to committing
each element of a violation of 18 U.S.C. § 924(c), both by
his own words and in his sworn prepared statement to the
court. J. App’x at 256, 258.

     Nor did the district court err in rejecting Anderson’s
claim of “actual innocence.” Anderson contends on appeal
that he could not have brandished a gun or participated in
criminal activity on the day specified in his plea
allocution, because he was still incarcerated. But it is
undisputed that Anderson was released on February 8, 2010 in
the early afternoon, and he offers no concrete accounting
for the time of the events in question. Anderson’s bare
assertions, which contradict his “self-inculpatory
statements made under oath at his plea allocution,” do not
establish his innocence and are insufficient to justify
withdrawal of his guilty plea. Adames v. United States, 171
F.3d 728, 732 (2d Cir. 1999); see also United States v.
Hirsch, 239 F.3d 221, 225 (2d Cir. 2001).

     Anderson also argues that he should be able to withdraw
his plea in consideration of the ineffective assistance of
his counsel at the plea hearing. He claims that his counsel
failed to ensure he understood the charge, and
misrepresented his chances if he proceeded to trial. These
allegations are contradicted by the plea agreement, PSR, and
a sworn statement submitted by his former counsel, all of
which show that the appellant was fully informed, and that
he understood each aspect of his guilty plea.

     In any event, Anderson fails to show how any error in
counseling or ineffective assistance resulted in prejudice
that would support withdrawal of his guilty plea. As to the
particulars of the charge, the magistrate judge addressed
the issues that Anderson contends his lawyer failed to

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explain. See Maher, 108 F.3d at 1520-21 (explaining adhere
to Rule 11 for plea colloquy helps to ensure that plea is
knowing and voluntary); see also Londono v. United States,
No. 11 CV. 6773 CM, 2012 WL 2376456, at *5 (S.D.N.Y. June
21, 2012)(ineffective assistance of counsel null where the
court provided the defendant with the necessary information
at plea hearing). And Anderson cannot fault counsel for
failing to object to the acceptance of the plea, given that
the procedure of the plea hearing was not deficient and
attorneys cannot be required to lodge meritless objections.
See United States v. Arena, 180 F.3d 380, 396 (2d Cir.
1999), abrogation on unrelated grounds recognized by United
States v. Sekhar, 683 F.3d 436 (2d Cir. 2012).

     As to Anderson’s ineffective assistance claim citing
his substitute attorney, Mr. Dinnerstein, we consider the
record incomplete to resolve the question on the merits and
therefore decline to hear the claim on this appeal. See
United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003);
Ellerby v. United States, 187 F.3d 257, 259-60 (2d Cir.
1998). Anderson may, of course, raise his ineffectiveness
claim as a motion for habeas corpus pursuant to
28 U.S.C. § 2255. See Massaro v. United States, 538 U.S.
500, 504-05 (2003)(noting that “in most cases a motion
brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance”).

     Lastly, the parties agree that Anderson is entitled to
a limited remand on the issue of his term of supervised
release.

     We therefore AFFIRM the judgment of the district court
with respect to Anderson’s principal sentence of 84 months
in prison and REMAND for the district court to resentence
only on the supervised release component of his sentence.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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