Argued: April 17, 2018
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
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
Y. Yurowitz, Esq., New York, NY, for Defendant-Appellant.
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.
L. Carney, Circuit Judge:
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.
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).
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.
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.
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.
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.
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.
therefore AFFIRM the District Court's judgment of
conviction, and DISMISS the appeal in remaining part.
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. 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.
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).
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
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  and 
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."
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
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.
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