United States v. Nourse 1

12-1268-cr
United States v. Nourse
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2012 6
7
8
(Argued: April 19, 2013 Decided: July 16, 2013) 9
10
Docket No. 12-1268 11
12
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14
UNITED STATES OF AMERICA, 15
16
Appellee, 17
18
- v.- 19
20
Michael Cook, Sean Herrmann, AKA Vinny, Scott Power, Marcel 21
Malachowski, AKA Sealed Defendant 4, AKA Memo, Selena 22
Hopper, AKA Sealed Defendant 2, AKA Sealed Defendant 5, Lee 23
Tarbell, AKA Sealed Defendant 6, AKA Sleeman, June Jacobs, 24
AKA Sealed Defendant 7, AKA Punk, John Jacobs, AKA Sealed 25
Defendant 8, AKA Wadd, Bryan Cole, AKA Sealed Defendant 9, 26
AKA Buckwheat, Jacquis Harris, AKA Sealed Defendant 7, AKA 27
Sealed Defendant 10, Owen Peters, AKA Sealed Defendant 11, 28
AKA Weezy, Brandon Benedict, AKA Sealed Defendant 12, David 29
Herrmann, AKA Sealed Defendant 13, Adam Fender, AKA Sealed 30
Defendant 14, AKA The Electrician, Jonas Cavallo, AKA Sealed 31
Defendant 15, AKA The Carpenter, Armande Millhouse, AKA 32
Sealed Defendant 16, AKA Beatlejuice, AKA Milly, Jeffrey 33
Baroni, AKA Sealed Defendant 18, Jason Tackus, AKA Sealed 34
Defendant 19, Joshua Brown, AKA Sealed Defendant 20, Sean 35
Canty, AKA Sealed Defendant 21, Aaron Freyder, AKA Sealed 36
Defendant 22, Dominick Stone, AKA Sealed Defendant 23, 37
38
Defendants, 39
40
ANDREW NOURSE, AKA Sealed Defendant 17, AKA The Jeweler, 41
42
Defendant-Appellant. 43
44
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Before: JACOBS, Chief Judge, POOLER and WESLEY, 1
Circuit Judges. 2
3
Andrew Nourse appeals from his sentence of 60 months’ 4
imprisonment for conspiracy to distribute and possess with 5
the intent to distribute more than a 100 kilograms of 6
marijuana, entered in the United States District Court for 7
the Northern District of New York (Kahn, J.). He challenges 8
a ruling on criminal history; but to press that argument, 9
Nourse must overcome an appeal waiver. Although the 10
district court expressed the terms of the waiver 11
imperfectly, the objection was unpreserved. We hold that 12
plain error is the standard of review for an unpreserved 13
challenge to an appeal waiver, and that Nourse has not 14
sustained his burden. Affirmed. 15
BRENDA K. SANNES (Terrence M. 16
Kelly, on the brief) for Richard 17
S. Hartunian, United States 18
Attorney for the Northern 19
District of New York, Syracuse, 20
NY, for Appellee. 21
22
DEVIN MCLAUGHLIN, Langrock 23
Sperry & Wool, LLP, Middlebury, 24
VT, for Defendant-Appellant. 25
26
DENNIS JACOBS, Chief Judge: 27
28
Andrew Nourse appeals from his 60-month sentence, 29
entered in the United States District Court for the Northern 30
2

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District of New York (Kahn, J.), for conspiracy to 1
distribute and possess with the intent to distribute more 2
than a 100 kilograms of marijuana . He challenges a ruling 3
on criminal history; but to press that argument, Nourse must 4
overcome an appeal waiver. Although the district court 5
expressed the terms of the waiver imperfectly, the objection 6
was unpreserved. We hold that plain error is the standard 7
of review for an unpreserved challenge to an appeal waiver, 8
and that Nourse has not sustained his burden. Affirmed. 9
10
I 11
Andrew Nourse was a driver for an Albany drug 12
distribution ring that operated in 2008-09. After his 13
arrest in 2011, Nourse entered a plea agreement consenting 14
to the charge of conspiracy to distribute and possess with 15
the intent to distribute more than 100 kilograms of 16
marijuana. He stipulated that he was “accountable for at 17
least 100 kilograms but less than 400 kilograms” of 18
marijuana. Plea Agreement at 7, ECF No. 389. 19
Nourse’s plea agreement recites that he consulted with 20
counsel, “fully underst[ood] the extent of his rights to 21
appeal” and “waive[d] any and all rights, including those 22
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conferred by l8 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to 1
appeal or collaterally attack his conviction and any 2
sentence of imprisonment of 60 months or less . . . .” Plea 3
Agreement at 12 (emphasis added). 4
During the change of plea colloquy, the district court 5
reviewed Nourse’s plea agreement with him, touching as 6
follows on the appeal waiver: 7
THE COURT: Is there a waiver of any appeal 8
rights in the plea agreement? 9
MR. KELLY: Yes, your Honor. The defendant 10
waives his right to appeal and to collaterally attack 11
his conviction. He preserves the right to appeal the 12
reasonableness of the sentence in excess of 60 months. 13
THE COURT: Is that correct, Mr. Kindlon? 14
MR. KINDLON: Yes, your Honor, it is. 15
THE COURT: Do you understand that too, Mr. Nourse? 16
THE DEFENDANT: I do. 17
18
Change of Plea Hr’g Tr. at 14-15, ECF No. 550. 19
20
The presentence investigation report (“PSR”) assigned 21
Nourse three criminal history points based on three 22
proceedings in Massachusetts state court, each of which was 23
“continued without a finding.” Presentence Report 24
(“PSR”) ¶¶ 31-33, ECF No. 432. A continuance without a 25
finding is a mechanism in the Massachusetts courts that 26
permits charges to be dismissed on a date certain if the 27
defendant complies with negotiated terms or probation. See 28
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Mass. Gen. Laws ch. 278, § 18. 1
1
In the first proceeding, Nourse was charged with 2
operating a motor vehicle under the influence of liquor, 3
operating an unregistered motor vehicle, and marked lane 4
violations in the district court in Hingham. PSR ¶ 31. In 5
the second, he was charged with possession of marijuana in 6
Boston. Id. ¶ 32. In the third, he was charged with 7
operating a motor vehicle with a suspended license, 8
operating an unregistered vehicle, and possession of 9
marijuana, in Framingham. Id. ¶ 33. Each case was 10
“continued without a finding,” apparently in exchange for a 11
probationary agreement. 12
1 “A defendant who is before the Boston municipal
court or a district court or a district court sitting in a
juvenile session or a juvenile court on a criminal offense
within the court’s final jurisdiction shall plead not guilty
or guilty, or with the consent of the court, nolo
contendere. Such plea of guilty shall be submitted by the
defendant and acted upon by the court; provided, however,
that a defendant with whom the commonwealth cannot reach
agreement for a recommended disposition shall be allowed to
tender a plea of guilty together with a request for a
specific disposition. Such request may include any
disposition or dispositional terms within the court’s
jurisdiction, including, unless otherwise prohibited by law,
a dispositional request that a guilty finding not be
entered, but rather the case be continued without a finding
to a specific date thereupon to be dismissed, such
continuance conditioned upon compliance with specific terms
and conditions or that the defendant be placed on probation
pursuant to the provisions of [chapter 276, § 87].” Mass.
Gen. Laws ch. 278, § 18.
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Nourse argued at the February 2012 sentencing hearing 1
that these prior offenses should not affect his criminal 2
history. The district court rejected the argument, 3
referencing a First Circuit opinion holding that a 4
Massachusetts continuance without a finding could be 5
considered for the purpose of criminal history. Sentencing 6
Hr’g Tr. at 5-6, ECF No. 514. However, the district court 7
also suggested that it was “an interesting issue for appeal, 8
if [Nourse’s counsel] is so inclined; I don’t think our 9
Second Circuit has ruled on it at all.” Id. at 5. The 10
court proceeded to sentence Nourse to 60 months’ 11
imprisonment, the statutory mandatory minimum. Id. at 6. 12
13
II 14
Before accepting a guilty plea, Federal Rule of 15
Criminal Procedure 11(b)(1)(N) requires that the court 16
“inform the defendant of, and determine that the defendant 17
understands . . . the terms of any plea-agreement provision 18
waiving the right to appeal or to collaterally attack the 19
sentence.” Fed. R. Crim. P. 11(b)(1)(N). The parties 20
dispute the proper standard of review for Nourse’s claim 21
that the district court failed to comply with the Rule. 22
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A circuit split over how to evaluate Rule 11 errors was 1
resolved in United States v. Vonn, 535 U.S. 55, 58-59 2
(2002). A defendant who has not preserved a Rule 11 3
objection in district court and wishes to amend his guilty 4
plea on appeal must show plain error. Id. After Vonn, 5
other circuits have applied plain error to appeals arising 6
under Rule 11(b)(1)(N) specifically. See United States v. 7
Borrero-Acevedo, 533 F.3d 11, 13 (1st Cir. 2008) (joining 8
“the other circuits to have considered the question and 9
hold[ing] that the plain error standard applies to 10
unpreserved claims of violations of Fed. R. Crim. P. 11
11(b)(1)(N)”) (citing United States v. Murdock, 398 F.3d 12
491, 496 (6th Cir. 2005) and United States v. 13
Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004)); see 14
also United States v. Sura, 511 F.3d 654, 662 (7th Cir. 15
2007); United States v. Edgar, 348 F.3d 867, 873 (10th Cir. 16
2003). Because we have not expressly stated the standard of 17
review for unpreserved challenges under subsection 18
(b)(1)(N), Nourse suggests that they should be considered 19
under some different standard. We disagree. 20
Nourse argues that this Court has “refrained” from 21
imposing a plain error standard in this context. Instead, 22
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he advocates for the test set out in United States v. Ready, 1
which asks whether “the record ‘clearly demonstrates’ that 2
the waiver was both knowing (in the sense that the defendant 3
fully understood the potential consequences of his waiver) 4
and voluntary.” 82 F.3d 551, 557 (2d Cir. 1996) (citation 5
omitted). 6
Ready was decided three years before the 1999 adoption 7
of Rule 11(b)(1)(N), and six years before Vonn. Nourse 8
cites other of our cases in which plain error was not 9
applied as the standard; but they also pre-date one or both 10
of Rule 11(b)(1)(N) and Vonn. See United States v. Tang, 11
214 F.3d 365, 368 (2d Cir. 2000); United States v. 12
Martinez-Rios, 143 F.3d 662, 668 (2d Cir. 1998); United. 13
States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997). In any 14
event, Ready’s “knowing and voluntary” test is not at all 15
inconsistent with plain error review: “Rule 11 is designed 16
to assist district courts in ensuring that a defendant’s 17
guilty plea is knowing and voluntary.” United States v. 18
Mercado, 349 F.3d 708, 211 (2d Cir. 2003) (emphasis added). 19
We are bound by Vonn, which governs all Rule 11 20
appeals, subsection (b)(1)(N) included. The general 21
principle is that “Rule 11 violations that are not objected 22
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to at the time of the plea are subject to plain error review 1
under Rule 52(b) of the Federal Rules of Criminal 2
Procedure.” United States v. Youngs, 687 F.3d 56, 59 (2d 3
Cir. 2012) (citing Vonn, 535 U.S. at 62-63). That rule has 4
been applied to subsections other than (b)(1)(N), see, e.g., 5
United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) 6
(using plain error review in the context of a Rule 7
11(b)(1)(K) appeal), and it applies here as well. 8
Plain error review facilitates (and protects) judicial 9
efficiency. Without it, litigants would have little reason 10
to bring Rule 11 errors to a district court’s attention, a 11
consideration that is equally salient for subsection 12
(b)(1)(N). See Borrero-Acevedo, 533 F.3d at 15-16 (citing 13
Vonn, 535 U.S. at 73). Appellate waivers advance powerful 14
considerations of efficiency and finality; prosecutors make 15
various accommodations in plea deals in exchange for the 16
certainty that they will not have to spend resources 17
litigating appeals down the line. 18
Accordingly, we apply plain error review to Nourse’s 19
unpreserved Rule 11(b)(1)(N) challenge. “Plain error review 20
requires a defendant to demonstrate that (1) there was 21
error, (2) the error was plain, (3) the error prejudicially 22
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affected his substantial rights, and (4) the error seriously 1
affected the fairness, integrity or public reputation of 2
judicial proceedings. . . . Additionally, to show that a 3
Rule 11 violation was plain error, the defendant must 4
demonstrate that there is a reasonable probability that, but 5
for the error, he would not have entered the plea.” Youngs, 6
687 F.3d at 59 (internal quotations omitted). 7
8
III 9
Nourse challenges the appeal waiver on two grounds: 10
that the judge failed to advise him of the “heart” of the 11
appeal waiver; and that the advice given was undermined by 12
the judge’s observation that the issue of Massachusetts law 13
bearing on criminal history was ambiguous and ripe for an 14
appeal to the Second Circuit. Neither argument is 15
persuasive; Nourse fails to demonstrate that any error 16
existed, or that absent the error he would not have entered 17
the plea. 18
Nourse argues that the judge “never informed [him] that 19
he was waiving the right to appeal a sentence of 60 months 20
or less.” Nourse Br. at 10. Because Nourse did not raise 21
this error in the district court, where it could have been 22
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promptly sorted out, his argument is reviewed for plain 1
error. See Vonn, 535 U.S. at 62-63. 2
The court explicitly asked Nourse about the appellate 3
waiver, and Nourse confirmed that he consented to it. The 4
exchange was perfectly lucid and understandable. 5
Nourse argues that the prosecutor’s expression of the 6
waiver did “not state by necessary implication that [Nourse] 7
could not appeal a sentence of less than 60 months.” Nourse 8
Br. at 11. But no negative pregnant suggested that he 9
could. The prosecutor stated that Nourse waived his right 10
to appeal, but preserved his right to appeal a sentence in 11
excess of 60 months. The first point makes sense only if 12
the second is understood as a carve-out; i.e., there is a 13
general waiver except for a sentence that exceeds 60 months. 14
Since, under the circumstances, there was “no realistic 15
possibility that [the defendant] might have misunderstood 16
the nature or source of the waiver,” the district court 17
“properly addressed the waiver provision during the plea 18
colloquy.” United States v. Morgan, 386 F.3d 376, 379 (2d 19
Cir. 2004). 20
Nourse cites as an analog, United States v. Smith, 618 21
F.3d 657, 664-65 (7th Cir. 2010), in which the district 22
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court asked the public defender whether there was a plea 1
waiver and elicited the response, “everything is waived with 2
the exception of the reasonableness of the 3
sentence . . . [a]nd he can’t withdraw his plea.” Id. at 4
565. The judge asked the defendant, “[y]ou understand 5
that?” and the defendant said he did. Id. The Seventh 6
Circuit held that this exchange “did not comport with the 7
requirements of Rule 11(b)(1)(N)” because the judge had not 8
adequately explained to the defendant the “substance of the 9
waiver.” Id. The judge’s inquiries focused on the finality 10
of the plea rather than the appeal waiver itself. Id. 11
There is no such ambiguity here. The relevant exchange 12
among the judge, the prosecutor, Nourse’s counsel, and 13
Nourse himself referenced only the appeal waiver. The most 14
logical understanding of Nourse’s response is that, except 15
for a retained “right to appeal the reasonableness of [a] 16
sentence in excess of 60 months,” he understood that he was 17
waiving altogether “his right to appeal and to collaterally 18
attack his conviction.” Change of Plea Hr’g Tr. at 14. 19
Nourse contends that the appeal waiver was at least 20
impaired when the district court suggested a Second Circuit 21
appeal on the issue of Massachusetts law. However, “an 22
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otherwise enforceable waiver of appellate rights is not 1
rendered ineffective by a district judge’s post-sentencing 2
advice suggesting, or even stating, that the defendant may 3
appeal.” United States v. Fisher, 232 F.3d 301, 304 (2d 4
Cir. 2000). The district court’s stray comment occurred at 5
sentencing, not at the plea colloquy, so it does not speak 6
to whether Nourse’s appellate waiver was knowing and 7
voluntary. Nourse relies on a proviso in Fisher that “[a] 8
district judge’s advice concerning appellate rights might 9
weigh in favor of construing an ambiguous waiver not to be 10
enforceable.” Id. at 304 n.2. But for the reasons 11
explained supra, the waiver here was not at all ambiguous. 12
In sum, Nourse made a knowing and voluntary waiver. He 13
therefore has not established a Rule 11(b)(1)(N) error to 14
satisfy the first step of the plain error test. 15
Nourse also fails to establish plain error for a 16
second, alternative reason: he has not shown “a reasonable 17
probability that, but for the error, he would not have 18
entered the plea.” Youngs, 687 F.3d at 59. In fact, Nourse 19
admits that he does not want to withdraw his plea. Nourse 20
Br. at 14 (“Unlike most Rule 11 challenges, where the 21
defendant is seeking to withdraw his plea, Mr. Nourse is 22
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merely seeking the opportunity to be heard on appeal as to 1
the sentence he claims is illegal.”). 2
Because Nourse’s appeal waiver is binding, we need not 3
reach the merits of his argument under Massachusetts law. 4
5
For the foregoing reasons, we affirm. 6
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