     14-391(L)
     UNITED STATES v. COLE, PHILIPPE

                              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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                        -v.-                                                       14-391(L)
16                                                                                   14-463(con)
17       TREVOR COLE, DOMINIQUE JEAN PHILIPPE,
18                Defendants-Appellants.1
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANTS:                               DANIEL DEMARIA, Merchant Law
22                                                     Group LLP, White Plains, New
23                                                     York.
24



                1
                    The Clerk of Court is directed to amend the case caption as above.

                                                          1
 1                              JULIA PAMELA HEIT, New York, New
 2                              York.
 3
 4   FOR APPELLEE:              PARVIN MOYNE (with Justin
 5                              Anderson on the brief), for
 6                              Preet Bharara, United States
 7                              Attorney for the Southern
 8                              District of New York, New York,
 9                              New York.
10

11        Appeal from judgments of the United States District
12   Court for the Southern District of New York (Forrest, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgments of the district court be
16   AFFIRMED.
17
18        Trevor Cole and Dominique Jean Philippe appeal from
19   judgments of the United States District Court for the
20   Southern District of New York (Forrest, J.), sentencing each
21   to consecutive sentences of life imprisonment plus seven
22   years’ imprisonment after their guilty pleas to five counts
23   relating to a robbery and kidnapping. On appeal, Cole and
24   Philippe advance three arguments for vacatur of the
25   judgments against them: (1) that their guilty pleas were
26   unknowing or involuntary, (2) that their sentences are
27   unreasonable, and (3) that they were deprived of effective
28   assistance of counsel. Rejecting the first two arguments,
29   and declining to address the third on direct appeal, we
30   affirm the judgments of the district court. We assume the
31   parties’ familiarity with the underlying facts, the
32   procedural history, and the issues presented for review.
33
34        The record of the Fatico hearing reflects that on the
35   night of September 2, 2012, Cole and Philippe kidnapped a
36   woman at gunpoint from a common area of her Bronx apartment
37   building. They forced the victim into her own apartment and
38   bound her wrists, ankles, and eyes with duct tape. She was
39   held captive in that state for almost three days, unable to
40   use a bathroom. During that time, Cole and Philippe were
41   joined in the victim’s apartment by accomplices. Several of
42   the men sexually assaulted the victim, and one urinated on
43   her. She was compelled to call her drug-dealing boyfriend
44   and lure him to the apartment, where he was battered and
45   stabbed on arrival. While detaining both victims, the
46   kidnappers demanded a combination to a safe and stole

                                  2
 1   $40,000 from it. After further attempts to steal more money
 2   failed, the band of robbers (including Cole and Philippe)
 3   fled the apartment.
 4
 5        Each defendant was charged with: one count of
 6   conspiring to violate the Hobbs Act, 18 U.S.C. § 1951, one
 7   count of Hobbs Act robbery, one count of conspiring to
 8   commit kidnapping, one count of kidnapping, and one count of
 9   using a firearm in furtherance of those crimes in violation
10   of 18 U.S.C. § 924(c). On the day their jury trial was
11   scheduled to begin, the two pled guilty to all five charges.
12
13        The Fatico hearing was conducted to resolve whether the
14   there was sexual exploitation and a ransom demand. The
15   district court found that the female victim was sexually
16   exploited and that a ransom demand had been made of the male
17   victim.
18
19        At sentencing, the district court calculated that the
20   Guidelines offense level was 47, that Philippe was in
21   Criminal History Category V, and that Cole was a career
22   offender. Each defendant was sentenced to consecutive terms
23   of life imprisonment plus seven years’ imprisonment.
24
25        1. Cole and Philippe challenge the knowing and
26   voluntary character of their guilty pleas, based on the
27   absence of an incentivizing plea agreement and based on
28   defects in their plea colloquies.
29
30        Cole and Philippe argue that no defendant with
31   effective counsel and in sound mind would plead guilty in
32   the absence of a government plea agreement when a long
33   prison sentence hangs in the balance. To the contrary,
34   there is no constitutional requirement that every defendant
35   at risk of a long sentence must proceed to trial absent
36   incentives from the government. Some defendants may plead
37   guilty to evidence acceptance of responsibility; some may
38   exercise an impulse to confess; and there are doubtless
39   other motivations. The circumstances on the present record
40   do not establish that the pleas were constitutionally
41   defective.
42
43        Because neither defendant registered objection to
44   defects in the plea colloquy, we review for plain error.
45   Fed. R. Crim. P. 52(b); see United States v. Yang Chia Tien,
46   720 F.3d 464, 469 (2d Cir. 2013). They argue on appeal that
47   the district court failed to disclose its “obligation . . .

                                  3
 1   to consider that [Sentencing Guidelines advisory] range,
 2   possible departures under the Sentencing Guidelines, and
 3   other sentencing factors under 18 U.S.C. § 3553(a)”--a
 4   disclosure required by Federal Rule of Criminal Procedure
 5   11(b)(1)(M). Neither defendant offers a substantial reason
 6   why, but for this omission, he would not have pled guilty.
 7   This challenge therefore fails under the plain error
 8   standard.
 9
10        Philippe contends that the Pimentel letter misled him
11   regarding the consequences of his plea. The purpose of such
12   a letter is to “inform defendants, prior to accepting plea
13   agreements, as to the likely range of sentences that their
14   pleas will authorize under the Guidelines.” United States
15   v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991). The letter
16   at issue predicted that the Guidelines advisory range would
17   be consecutive terms of life imprisonment and seven years’
18   imprisonment. It did not lull Philippe into optimism.
19
20        Cole argues that it is unclear whether defendants saw
21   the Pimentel letters at all. However, each defendant
22   answered general questions about his respective Pimentel
23   letter in his plea colloquy, and both defendants explicitly
24   affirmed that they understood various aspects of the
25   letters. It is, moreover, clear that Cole and Philippe’s
26   respective lawyers received the letters. Hence, the record
27   is clear that the government’s view as to the applicable
28   Guidelines range was sufficiently communicated to Cole and
29   Philippe.
30
31        2.  We review sentences for reasonableness, United
32   States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per
33   curiam), which “amounts to review for abuse of discretion,”
34   United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
35   (en banc). This concept applies both to “the sentence
36   itself and to the procedures employed in arriving at the
37   sentence.” United States v. Verkhoglyad, 516 F.3d 122, 127
38   (2d Cir. 2008) (internal quotation marks omitted).
39
40        Cole and Philippe challenge the procedural
41   reasonableness of their sentences on several grounds.
42
43        The district court found that neither defendant was
44   entitled to a downward adjustment for acceptance of
45   responsibility. That finding was based on factors that the
46   district court is permitted to consider, such as the timing
47   of Cole and Philippe’s guilty pleas and their consistent

                                  4
 1   denials of relevant offense conduct found by the district
 2   court, namely the sexual exploitation of the female victim.
 3   See USSG § 3E1.1 cmt. nn.1(A),(H); see also United States v.
 4   Reyes, 9 F.3d 275, 280 (2d Cir. 1993) (“Whether or not a
 5   defendant has accepted responsibility for the offense of
 6   conviction is a factual question as to which the district
 7   court’s determination should not be disturbed unless it is
 8   without foundation.” (internal quotation marks omitted)).
 9
10        Defendants argue that the district court applied the
11   wrong definition of “ransom.” The kidnappers ordered the
12   female victim to call her boyfriend so that he would arrive
13   at the apartment. They also ordered the male victim to call
14   a friend to get money for ransom. He pretended to call, and
15   failed to make the contact. After observing that the
16   Sentencing Guidelines do not define “ransom,” the district
17   court adopted the following definition: “consideration for
18   the release of a person or . . . consideration in connection
19   with a demand for the release of a person.” J.A. 111.
20   Defendants, citing for the first time on appeal United
21   States v. Reynolds, 714 F.3d 1039 (7th Cir. 2013), and
22   therefore subject only to plain-error review, assert that
23   there was no ransom demand or, in the alternative, that the
24   enhancement applied only to the male victim. Our Court, in
25   United States v. Escobar-Posado, 112 F.3d 82 (2d Cir. 1997)
26   (per curiam), took a different approach. We need not
27   resolve any possible tensions in these approaches, however,
28   because the district court clearly stated that it would have
29   imposed the same sentence regardless of the ransom
30   enhancement. Hence, the error, if any, was not plain error.
31   See United States v. Jass, 569 F.3d 47, 50 (2d Cir. 2009).
32
33        Cole and Philippe challenge the enhancement premised on
34   a finding that the female victim sustained serious bodily
35   injury. However, the victim testified to specific injuries
36   (for example, burns on her skin where she had been bound)
37   and to her subsequent hospitalization. See USSG § 1B1.1
38   cmt. n.1(L) (“‘Serious bodily injury’ means injury . . .
39   requiring medical intervention such as surgery,
40   hospitalization, or physical rehabilitation.” (emphasis
41   added)); id. § 2A4.1(b)(2)(B).
42
43        As to the sexual exploitation, which resulted in a
44   further sentencing enhancement, see USSG § 2A4.1(b)(5), Cole
45   and Philippe contest whether sexual exploitation occurred as
46   well as whether they were the ones who did it. The female
47   victim’s testimony at the Fatico hearing allowed the

                                  5
 1   district court to find that the sexual exploitation
 2   occurred; and even if the sexual exploitation was undertaken
 3   by accomplices rather than by Cole or Philippe, the district
 4   court had discretion to find that the sentencing enhancement
 5   applied for the “reasonably foreseeable acts and omissions
 6   of others in furtherance of the jointly undertaken criminal
 7   activity,” United States v. Studley, 47 F.3d 569, 573 (2d
 8   Cir. 1995) (quoting USSG § 1B1.3(a)(1)(B)) (emphasis
 9   omitted). Defendants alternatively argue that the sexual
10   exploitation should have been found by a jury beyond a
11   reasonable doubt, rather than by the district court by a
12   preponderance of the evidence; but judicial factfinding is
13   proper with respect to sentencing enhancements under an
14   advisory Guidelines system. See, e.g., Alleyne v. United
15   States, 133 S. Ct. 2151, 2161-63 (2013); United States v.
16   Singletary, 458 F.3d 72, 80 (2d Cir. 2006).
17
18        Philippe contends that his criminal history score was
19   unfairly overstated, citing a (remarkable) number of
20   offenses that he characterizes as minor and nonviolent.
21   Philippe concedes, however, that his criminal history score
22   was accurately calculated under the Guidelines. The
23   district court did not err in adopting that calculation.
24
25        Finally, Cole and Philippe contend that the district
26   court failed to respect their right of allocution; but the
27   district court invited both Cole and Philippe to allocute
28   before imposition of any sentence, in conformity with
29   Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).
30
31        Neither are the sentences substantively unreasonable.
32   The requirement of substantive reasonableness “provide[s] a
33   backstop for those few cases that, although procedurally
34   correct, would nonetheless damage the administration of
35   justice because the sentence imposed was shockingly high,
36   shockingly low, or otherwise unsupportable as a matter of
37   law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
38   2009). Defendants’ sentences here fell “within the range of
39   permissible decisions,” Cavera, 550 F.3d at 191, given both
40   the seriousness of their crimes and their extensive criminal
41   histories.
42
43        3. The claims of ineffective assistance of counsel are
44   more appropriately directed to the district court in a
45   motion under 28 U.S.C. § 2255. See Massaro v. United
46   States, 538 U.S. 500, 505 (2003). We therefore decline to


                                  6
 1   address the ineffective assistance claims on this direct
 2   appeal.
 3
 4        For the foregoing reasons, and finding no merit in Cole
 5   and Philippe’s other arguments (except for the ineffective
 6   assistance arguments, on which we decline to rule on direct
 7   appeal), we hereby AFFIRM the judgment of the district
 8   court.2
 9
10                                               FOR THE COURT:
11                                               CATHERINE O’HAGAN WOLFE, CLERK
12




            2
              Reassured by the absence of any showing of prejudicial error, we reject Cole and
     Philippe’s argument that future proceedings (collateral or otherwise) involving them should take
     place before a different district judge.

                                                    7
