U.S. Court of Appeals for the Second Circuit, 2005

United States v. Persico

U.S. Court of Appeals for the Second Circuit · Decided July 13, 2005 · Cabranes, Leval, Newman

139 F. App'x 308

Opinion of the Court

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court be and hereby is AFFIRMED.

*309Alphonse T. Persico appeals the judgment of conviction of the District Court, entered on November 25, 2003, following his guilty plea to counts of (1) racketeering in violation of 18 U.S.C. § 1962(c), (2) conspiracy to engage in racketeering in violation of 18 U.S.C. § 1962(d), (3) racketeering through collection of unlawful debt in violation of 18 U.S.C. § 1962(c), (4) conspiracy to collect extensions of credit by extortionate means in violation of 18 U.S.C. § 894, and (5) conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). The District Court sentenced Persico principally to 156 months’ imprisonment. Persico appeals his conviction and sentence on the grounds that (1) he received ineffective assistance of counsel, and (2) the District Court failed to satisfy the requirements of Federal Rule of Criminal Procedure 11 (“Rule 11”) by permitting Persico to plead guilty when he did not understand the nature of the charges and by failing to establish a factual basis for the plea.

Persico argues on appeal that he was deprived of effective assistance of counsel because, inter alia, his then-counsel failed to inform him of all the elements of the offenses to which he pleaded guilty. Though Persico raises this ineffective assistance of counsel argument for the first time on appeal, the District Court anticipated the argument, held hearings at which Persico’s counsel testified, and invited Pérsico to submit evidence bearing on the performance of counsel. Persico did not submit an affidavit or testimony that he did not understand the elements of the charges against him. The District Court ultimately rejected the proposition that Persico’s experienced lawyers rendered deficient service, and found that in any case there could have been no prejudice to Pérsico as he was well aware of the nature of each charge. We have reviewed the record before us, and we find no error in the District Court’s conclusion. We accept the District Court’s findings that Pérsico did not meet his burden. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We also reject Persico’s claim that the Court violated Rule 11 by failing to ensure that he understood the nature of the charges. Pérsico asserts primarily that his plea to an extortion conspiracy was not validly entered because he did not understand that the crime involves violence or threats of violence. Notwithstanding any arguable deficiency in the plea allocution, we are satisfied that there was no violation of Rule 11(b)(1)(g), or, if there was a violation, it was harmless, because the defendant understood the nature of the charges. See Fed.R.Crim.P. 11(h). The District Court’s finding that Pérsico knew the nature of the charge was well supported given, inter alia, the extensive discussion of the nature of the charges at the bail hearing and in other proceedings (which included the judge’s statements that she was satisfied that “the defendant is charged with violent criminal activity ... [in which the defendant] operated basically as a supervisor and that others got to be actually the ones threatening the violence and instilling the fear,” see Feb. 2, 2001, Tr. at 19), Persico’s review with his lawyers in open court of the superseding indictment (which described the enterprise as “threatening and actually using physical violence”), see Dec. 20, 2001, Tr. at 14-15, the evident competence, sophistication, and inquiring nature of Pérsico throughout the plea process, Persico’s failure to submit any affidavit or testimony contending that he did not understand that he was charged with a crime of violence, and the timing of Persico’s motion in the District Court, which first asserted this contention shortly after a co-defendant had been acquitted on some of the major charges.

*310Finally, we reject Persico’s claim that the District Court violated Rule 11 by failing to establish a factual basis for his claim. See Fed.R.Crim.P. 11(b)(3). In determining that there is a factual basis for the plea, “[tjhe judge may look to answers provided by counsel for the defense and government, the presentence report, ‘or ... whatever means is appropriate in a specific case’ — so long as the factual basis is put on the record.” United States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998) (quoting United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997)). Having reviewed the voluminous record, we are satisfied that the district judge made no error in determining that there was a factual basis for the plea.1

We have considered Persico’s other arguments and find them to be without merit. The judgment of the District Court is affirmed.

. In a supplemental brief, Pérsico contends, in light of the Supreme Court's recent decision in Shepard v. United States, -U.S. -, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), that the District Court violated Persico’s Sixth Amendment rights by sentencing him based on facts that Persico never admitted. The brief also seems to argue that it was unconstitutional under Shepard for the District Court to rely on unadmitted facts, such as those found in the presentence report, in finding a factual basis for Persico’s guilty plea. We reject both arguments. As for the first argument, directed to what facts a court may consider in passing sentence, Persico may not raise it because he waived his right to "appeal or otherwise challenge the conviction or sentence” if it was at or below a specified length of 156 months’ imprisonment, which Persico's sentence was. See United States v. Morgan, 386 F.3d 376, 380 (2d Cir. 2004); see also United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005). As for the second argument, we see no basis in Shepard for undermining the longstanding view that a court may satisfy itself as to the requirement of Rule 11(b)(3) from varied sources other than the defendant’s admissions. Shepard addressed the question whether a court may properly find that a defendant's prior conviction by guilty plea had characteristics conforming to the requirements of the Armed Career Criminal Act ("ACCA”) (thus calling for a lengthy mandatory sentence for the new offense) on the basis of evidence outside "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, ... any explicit factual finding by the trial judge to which the defendant assented ... [or] some comparable judicial record of this information.” Shepard, 125 S.Ct. at 1257, 1263. The Court’s ruling interpreting the requirements of the ACCA statute raises very different considerations from those involved in a court’s determination under Rule 11(b)(3) that there is "a factual basis for the plea” which the defendant has entered in the same proceeding.

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