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United States v. Lloyd

United States Court of Appeals, Second Circuit

August 20, 2018

United States of America, Appellee,
v.
Patrick Lloyd, Defendant-Appellant, Jon Garcia, Codi Burke, Bernie Russo, Kimberly Jandrew, Justin Brailsford, Travis Moore, Zachary Huto, Leslie Moore, Paul Williams, Catherine Berry, Ginelle Gardner, Michael Spencer, Jessica Monaghan, Defendants.

          Argued: April 17, 2018

         Patrick Lloyd appeals from a judgment entered following his guilty plea in the United States District Court for the Northern District of New York (Sharpe, J.). Lloyd pleaded guilty to conspiracy to possess with intent to distribute controlled substances and to possession of a firearm in furtherance of a drug trafficking crime, the latter on a theory of liability based on Pinkerton v. United States, 328 U.S. 640 (1946). On appeal, he argues principally that the District Court's plea colloquy did not comport with Federal Rules of Criminal Procedure 11(b)(1)(G) and 11(b)(3), rendering his plea to the firearm charge involuntary and unknowing, and requiring vacatur of his conviction.

         We decide that the District Court erred by failing to ensure while accepting Lloyd's plea that Lloyd understood "the nature of each charge," as required by Rule 11(b)(1)(G). Nevertheless, because the record does not establish that but for this Rule 11 violation Lloyd would not have pleaded guilty, Lloyd has not demonstrated that his substantial rights were violated, and his challenge fails. Lloyd's second Rule 11 argument also falls short. The record shows that the court adequately "determine[d] that there is a factual basis for the plea" before it entered judgment, as required by Rule 11(b)(3). We dismiss Lloyd's substantive arguments regarding Pinkerton liability as barred by the appeal waiver contained in his plea agreement. And, as to Lloyd's claim of ineffective assistance, we adhere to our ordinary practice of declining on direct appeal to consider this type of claim, leaving Lloyd to pursue it on petition for habeas corpus, as during those proceedings the relevant facts may be more fully developed.

          Steven Y. Yurowitz, Esq., New York, NY, for Defendant-Appellant.

          Steven Clymer, Assistant United States Attorney (Carina H. Schoenberger, Assistant United States Attorney, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

          Before: Wesley, Chin, Carney, Circuit Judges.

          Susan L. Carney, Circuit Judge:

         In August 2015, defendant-appellant Patrick Lloyd pleaded guilty to two charges set forth in a third superseding indictment. These were: (1) conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846; and (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), based on the theory of co-conspirator liability articulated in Pinkerton v. United States, 328 U.S. 640 (1946). Following entry of Lloyd's guilty plea, the United States District Court for the Northern District of New York (Sharpe, J.), which accepted the plea, sentenced Lloyd principally to 25 years in prison, the mandatory minimum term of incarceration for these offenses.

         On appeal, Lloyd raises several arguments for vacating his firearm conviction. Most significantly, he maintains that the District Court failed to satisfy two signal requirements of Federal Rule of Criminal Procedure 11: that a district court judge accepting a plea personally inform the defendant of (among other matters) the "nature of each charge" as to which the defendant is pleading guilty, Fed. R. Crim. P. 11(b)(1)(G); and that, before entering judgment on a guilty plea, the court determine "that there is a factual basis for the plea," Fed. R. Crim. P. 11(b)(3).

         Lloyd further challenges his firearm possession conviction on grounds related to the Pinkerton theory of liability relied on by the government. Finally, he asserts that he received ineffective assistance of counsel in the proceedings leading up to his plea.

         Because Lloyd's written plea agreement contains an appeal waiver, we begin by addressing the Rule 11 arguments, for if he is unable to sustain them, the waiver will bar his substantive arguments. Lloyd raised neither of his Rule 11 arguments in the District Court, so we review the District Court's actions for plain error.

         We conclude that, when the District Court accepted Lloyd's plea, it erred by failing to "inform [him] of, and determine that [he] underst[ood] . . . the nature of each charge to which [he] [was] pleading." Fed. R. Crim. P. 11(b)(1)(G). During the change-of-plea hearing, the court did not articulate the elements of the crime to which Lloyd was pleading guilty, ask the government to do so, or have Lloyd state in his own words the factual conduct underlying his convictions such that the court could be certain and the record would reflect that Lloyd understood "the nature of each charge." This is a significant failure. We nevertheless reject Lloyd's challenge because he has pointed to nothing in the record suggesting that, had the District Court satisfied this element of Rule 11, he would not have pleaded guilty to the firearm charge. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). He therefore has not demonstrated that his substantial rights have been violated, and his argument fails.

         Lloyd's second Rule 11 argument rests on subsection (b)(3) of the Rule, which mandates that district courts "determine that there is a factual basis for the plea" and that they do so not necessarily at the plea colloquy, but at latest "[b]efore entering judgment on a guilty plea." Fed. R. Crim. P. 11(b)(3) (emphasis added.) In his change-of-plea hearing before the District Court, Lloyd acknowledged the accuracy of the facts as set forth in his written plea agreement. Lloyd's presentence report also set out relevant facts, and the District Court adopted that report at sentencing. Together, these made clear to the District Court before it entered judgment that the plea was supported by a sufficient factual basis. We therefore also reject Lloyd's second Rule-11-based challenge to his guilty plea.

         Having concluded that Lloyd's challenges to his guilty plea do not succeed, we dismiss the appeal as to Lloyd's two substantive arguments regarding his criminal liability for firearms possession under the theory endorsed in Pinkerton. Both are barred by his appeal waiver. Finally, we adhere to our ordinary practice of declining on direct appeal to consider a claim of ineffective assistance of counsel, and leave Lloyd to pursue his claim through habeas corpus proceedings, where the relevant facts may be more fully developed.

         We therefore AFFIRM the District Court's judgment of conviction, and DISMISS the appeal in remaining part.

         BACKGROUND

         On April 23, 2014, a grand jury in the Northern District of New York returned a third superseding indictment ("Indictment") against defendant-appellant Patrick Lloyd and five codefendants.[1] The Indictment alleged that, from some time in 2012 through September 2013, Lloyd and his codefendants conspired to distribute controlled substances in St. Lawrence, Franklin, and Clinton Counties, New York.

         The Indictment charged Lloyd with two crimes: (1) conspiracy to possess with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846 ("Count 1" or "the drug count"); and (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) ("Count 2" or "the firearm count"). The firearm count was premised on a Pinkerton theory of liability: the government sought to hold Lloyd criminally responsible for a codefendant's possession of the relevant firearms during the course of the drug conspiracy. See generally Pinkerton v. United States, 328 U.S. 640 (1946).

         In August 2015, on the eve of trial, Lloyd reached an agreement with the government to plead guilty, and on August 6 of that year, the District Court conducted Lloyd's change-of-plea hearing. Because the primary issue on appeal relates to the way the court conducted that hearing, we describe it in some detail.

         The District Court opened the hearing by confirming with defense counsel that Lloyd intended to change his earlier plea of not guilty "and enter a plea of guilty to Counts [1] and [2] of the [Indictment], charging him with conspiracy to possess with the intent to distribute and the distribution of controlled substances and the possession of a firearm in furtherance of a drug trafficking crime, all in violation of federal law, all pursuant to the terms of a plea agreement." Appellant's App. ("AA") 43. Proceeding under oath, Lloyd answered "yes" to the court's questions whether he had had a chance to read the written plea agreement and discuss it with counsel, and whether counsel "[w]as . . . able to explain those things . . . in a way so that [he felt he] underst[oo]d the terms and conditions of that plea agreement." Id. at 45. The court then informed Lloyd that it would "incorporate the plea agreement into the record of these proceedings since [Lloyd had] read it and [he] underst[oo]d it and [he had] discussed it with counsel." Id.

         The court next addressed the constitutional rights that Lloyd would relinquish by pleading guilty. See generally Fed. R. Crim. P. 11(b)(1). The District Court listed aloud the following rights as being subject to Lloyd's waiver: the right to a jury trial; to refrain from incriminating himself; to maintain his earlier plea of not guilty; to testify at trial, if he wished; to compel the appearance of witnesses; and to be proved guilty, if at all, beyond a reasonable doubt. The court then advised Lloyd of the maximum and minimum terms of imprisonment and supervised release, as well as the maximum possible fine, for each count of conviction, and informed Lloyd that he faced a $100 special assessment on each count. The District Court confirmed with Lloyd that Lloyd was a United States citizen and told him that, as a consequence of his conviction, he would lose the right to vote and to carry firearms. Lloyd responded in the affirmative when asked if he understood these effects of a conviction.

         Next, the District Court explained the terms of Lloyd's appeal and collateral attack waiver: Lloyd's waiver provided that he would give up his rights to "challenge the convictions resulting from [the] plea, . . . challenge any sentence of imprisonment of life or less, . . . challenge any fine within that permitted by law, [or] challenge any term of supervised release permitted by law." AA 52. Lloyd again declared that he understood, and the District Court confirmed with Lloyd that nobody had threatened Lloyd, pressured him to plead guilty, or promised him any benefit not identified in the plea agreement. See generally Fed. R. Crim. P. 11(b)(2).

         The District Court then "turn[ed] to the last area": determining whether "there are facts that would demonstrate . . . that [Lloyd] committed the two crimes [he was] pleading guilty to." AA 55-56. On this point, the ...


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