14‐3739‐cr(L) United States v. Babilonia

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of April, two thousand seventeen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee, 14‐3739‐cr (L) v. 15‐651‐cr (Con) 15‐1057‐cr (Con) AISHA BABILONIA, RUBEN DAVIS, AKA BLODDY RUBEN, AKA FAT MAN, AKA FAT BOY, ROGER KEY, AKA SEALED DEFENDANT 1, AKA LUCHIE, Defendants‐Appellants,

* Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation.

RUBEN FERNANDEZ, AKA POPS, RICHARD PALMER, AKA P.O., AKA P.O.P., PEDRO MARQUEZ, AKA BURNS, AKA BERN, ANDREA ISAROON, AKA CHAZ, DENNIS FREDERICKS, AKA ICE, CLAYTON MOLLETTE, AKA KILLER, AKA CLAY, STEVEN HERBERT, AKA ATTA, SHUNDU DAVIS, AKA DAVIS SHUNDU, JAMES MARTIN, DEXTER ERBY, AKA ADDI, AKA DIDA, YOUSSOUF DIOMADE, MOUSTAPHA GUEYE, KHALILAH MATTOCKS, AKA LILS, JOSE CAPRIATA, GEORGE DAVIS, AKA CHEE CHEE, KEITH PURVIS, AKA KIZ, Defendants.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: MARGARET GARNETT, Assistant United States Attorney (Abigail Kurland, Assistant United States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT ROBERT WILLIAM RAY, Thompson & Knight AISHA BABILONIA: LLP, New York, New York.

FOR DEFENDANT‐APPELLANT CHARLES F. WILLSON, Office of the Federal RUBEN DAVIS: Defender for the District of Connecticut, Hartford, Connecticut.

Appeal from the United States District Court for the Southern District of

New York (Stein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

* The Clerk of Court is respectfully directed to amend the official caption to conform to the above.

2

Defendant‐appellant Aisha Babilonia appeals from a September 22, 2014

judgment of the district court, following her guilty plea to conspiracy to commit

interstate stalking. Babilonia challenges her sentence of 60 monthsʹ imprisonment as

procedurally and substantively unreasonable. Defendant‐appellant Ruben Davis

appeals from a February 26, 2015 judgment of the district court, following his guilty

plea to a drug distribution conspiracy and a related firearm charge. Davis argues

principally that his convictions should be vacated because the factual basis for his plea

was inadequate and he was deprived of his right to conflict‐free counsel. We assume

the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.1

1. Babilonia

Babiloniaʹs conviction arises out of a murder plot that targeted Babiloniaʹs

abusive boyfriend Matthew Allen. Babilonia had told others, including Roger Key,

about the abuse she suffered, and Key hired an associate, Jiya Canady, to kill Allen.

Babilonia provided Key with a photo of Allen before the attempted murder. On

November 16, 2011, Canady drove the shooter, Jose Capriata, to a location in Brooklyn

where they had been told Allen was staying, and Capriata shot a man who turned out

to be an innocent bystander.

1 We address in an accompanying opinion filed today defendant‐appellant Roger Keyʹs appeal of his convictions.

3

On February 28, 2014, Babilonia pled guilty to a superseding Information

charging a federal stalking conspiracy in violation of

and 2261A.

Pursuant to her plea agreement, the government agreed to dismiss open charges for

murder‐for‐hire conspiracy and attempted murder‐for‐hire against her. The parties

stipulated to a sentencing range of 24 to 37 monthsʹ imprisonment. The agreement

further noted that neither party would seek a departure, upward or downward, from

the stipulated range.

After the conclusion of Keyʹs trial, the district court advised the parties of

its intention to consider an upward departure from Babiloniaʹs Guidelines range and

requested that the government highlight evidence presented at Keyʹs trial relating to

Babiloniaʹs participation in the Allen murder‐for‐hire plot. The government provided

testimony from Canady, a cooperating witness; telephone records and cellsite location

maps for Babilonia, Key, and Canadyʹs cell phones; and the photograph of Allen that

Babilonia had texted to Key. On September 8, 2014, the district court imposed the

maximum statutory sentence of 60 months.

We review the reasonableness of a sentence and the procedure followed at

sentencing for abuse of discretion. United States v. Cavera,

(2d Cir.

2008) (en banc). ʺA sentence is procedurally unreasonable if the district court ʹfails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

Sentencing Guidelines as mandatory, fails to consider the Section 3553(a) factors, selects

4

a sentence based on clearly erroneous facts, or fails adequately to explain the chosen

sentence.ʹʺ United States v. Aldeen,

(2d Cir. 2015) (quoting United States

v. Chu,

(2d Cir. 2013)). We vacate sentences for substantive

unreasonableness ʺonly in exceptional cases where the trial courtʹs decision cannot be

located within the range of permissible decisions, that is, when sentences are so

shockingly high, shockingly low, or otherwise unsupportable as a matter of law that

allowing them to stand would damage the administration of justice.ʺ Aldeen,

(citation and internal quotation marks omitted).

Babiloniaʹs sentence was not procedurally unreasonable. The district

court provided the parties with advance notice that it was considering an upward

departure under Policy Statement 5K2.21, which provides that the district court ʺmay

depart upward to reflect the actual seriousness of the offense based on conduct

(1) underlying a charge dismissed as part of a plea agreement . . . and (2) that did not

enter into the determination of the applicable guideline range.ʺ U.S.S.G. § 5K2.21.

During the sentencing proceeding, the district court explained why it had decided to

upwardly depart ‐‐ Babilonia had played ʺa significant role in the plan to stalk and

murder Matthew Allen.ʺ Babilonia App. 354. The district courtʹs explanation was

sufficient. See United States v. Campbell,

(2d Cir. 1992) (ʺ[F]or § 5K2.0

departures, the district courts need not make talismanic reference to the [intermediate

5

Guidelines levels], so long as there is careful explanation in the record of the reasons for

the extent of the departure.ʺ).

Nor did the district court abuse its discretion in denying Babiloniaʹs

request for a Fatico hearing. ʺThe district court is not required, by either the Due

Process Clause or the federal Sentencing Guidelines, to hold a full‐blown evidentiary

hearing in resolving sentencing disputes. All that is required is that the court afford the

defendant some opportunity to rebut the Governmentʹs allegations.ʺ United States v.

Slevin,

(2d Cir. 1996) (citations and internal quotation marks

omitted).

Babilonia made her request for a Fatico hearing after the district court

announced that it intended to impose a statutory maximum sentence. The district court

gave notice of its intent to consider such a sentence, however, months before the

sentencing proceeding. During the sentencing proceeding, the district court gave

Babilonia ample opportunity to contest the accuracy of facts that the district court was

considering in its determination, and Babilonia voiced her objections to the inferences

that the district court drew from those facts. Although the district court concluded,

after its discussion of those facts and inferences, that Babilonia played ʺa significant role

in the plan to stalk and murder Matthew Allen,ʺ Babilonia App. 354, that determination

did not involve a new issue on which Babilonia had not been heard. Accordingly, the

6

district court did not abuse its discretion or violate Babiloniaʹs due process rights by

declining to hold a Fatico hearing.

Finally, Babiloniaʹs sentence was not substantively unreasonable. ʺIf the

ultimate sentence is reasonable and the sentencing judge did not commit procedural

error in imposing that sentence, we will not second guess the weight (or lack thereof)

that the judge accorded to a given factor or to a specific argument made pursuant to

that factor.ʺ United States v. Fernandez,

(2d Cir. 2006), abrogated on other

grounds by Rita v. United States,

(2007).

The district court considered the duress that Babilonia was under in light

of the abuse she suffered, set forth in the mitigation report, personal statement, and

letters she submitted to the court. Considering that evidence in light of all of the Section

3553(a) factors, however, the district court determined that the mitigating effect of the

abuse was outweighed by Babiloniaʹs involvement in the plan to kill Allen, which

included texting a photograph of Allen to Key before the attempted murder. The fact

that the district court did not balance the sentencing factors in the way Babilonia

desired does not render the sentence unreasonable.

2. Davis

A. Factual Basis for Plea

Davis argues that his guilty plea to aiding and abetting a Section 924(c)

offense lacked a sufficient factual basis. On October 1, 2013, Davis pleaded guilty to

7

Count One (conspiracy to distribute narcotics) and Count Two (using, carrying, and

possessing firearms, and aiding and abetting the same, in connection with the narcotics

conspiracy) of the second Superseding Indictment. During the plea hearing, Davis

described in his own words his conduct related to the two charged crimes. To that end,

the district court posed a series of questions to Davis, the government, and Davisʹs

counsel. At one point in the colloquy, the district court offered to adjourn the hearing

and resume in the morning after Davis had been able to confer further with his counsel;

Davis, through his attorney, declined the offer. The government then proffered what it

planned to prove at trial for both counts. Davis raised no objection to the governmentʹs

recitation and subsequently pled guilty to both counts. The district court confirmed

that Davis was entering his plea knowingly and voluntarily and, finding that there was

a factual basis for the plea, accepted Davisʹs plea.

ʺ[W]here a defendant raises on appeal a claim of Rule 11 error that he did

not raise in the district court, that claim is reviewable only for plain error.ʺ United States

v. Torrellas,

(2d Cir. 2006).2 The defendant must demonstrate ʺthat (1)

there was error, (2) the error was ʹplain,ʹ [and] (3) the error prejudicially affected his

ʹsubstantial rights.ʹʺ

(internal quotation marks omitted).

2 We have previously used a ʺmodified plain errorʺ analysis where a purported error results from a supervening decision. United States v. Prado,

(2d Cir. 2016). We need not address whether a plain error or modified plain error analysis should apply here, however, because our conclusion would be the same under either approach. See United States v. Robinson,

, 200 n.1 (2d Cir. 2015).

8

Federal Rule of Criminal Procedure 11(b)(3) provides that ʺ[b]efore

entering judgment on a guilty plea, the court must determine that there is a factual basis

for the plea.ʺ Fed. R. Crim. P. 11(b)(3). The court must ʺassure itself simply that the

conduct to which the defendant admits is in fact an offense under the statutory

provision under which he is pleading guilty.ʺ United States v. Maher,

(2d Cir. 1997). As long as the factual basis for the plea is put on the record, the judge

may look to answers provided by counsel for the defense and government, the

presentence report, ʺor . . . whatever means is appropriate in a specific case.ʺ United

States v. Smith,

(2d Cir. 1998) (quoting Maher,

).

In Rosemond v. United States,

(2014), the Supreme Court

ʺclarif[ied] the relationship of the aiding and abetting statute . . . and

(c)ʹs

prohibition against using a firearm during a crime of violence,ʺ instructing that aiding

and abetting a Section 924(c) offense ʺrequires both an affirmative act furthering the

underlying offense and an intent to facilitate that offenseʹs commission.ʺ United States v.

Robinson,

, 199‐200 (2d Cir. 2015) (citing Rosemond,

). The

defendantʹs affirmative act need not ʺspecifically facilitate the use of the firearmʺ ‐‐

rather, ʺthe . . . requirement is met when the defendant facilitates any element of the

underlying offense.ʺ Id. at 200. The intent requirement is satisfied when the defendant

has advance knowledge that one of his confederates will carry a gun. Rosemond,

.

9

There was a sufficient factual basis for the district court to accept Davisʹs

plea at the time of the plea hearing based on Davisʹs admissions alone. During the

hearing, Davis admitted that (1) over the course of the drug conspiracy, he was aware

that other co‐conspirators possessed firearms in furtherance of the conspiracy; (2) he

benefitted from his co‐conspirators carrying firearms; (3) he intended other co‐

conspirators to carry and possess weapons in connection with his drug business; (4) he

had access to the firearms from time to time; (5) the firearms were kept in numerous

places; and (6) the firearms were used for protection of the drug business.

Davis conceded his participation in the underlying narcotics conspiracy,

an element of a Section 924(c) offense, thereby satisfying the affirmative act

requirement. He also allocuted that he was aware that his co‐conspirators carried

firearms in connection with the conspiracy, benefiting and protecting his drug business,

and that he intended they do so. Because Davis indicated that he continued to

participate in the conspiracy with the knowledge that his co‐conspirators were using or

carrying guns, the advance knowledge requirement was met. See

at 1250 n.9 (noting

that advance knowledge can be inferred ʺif a defendant continues to participate in a

crime after a gun was displayed or used by a confederateʺ). Thus, there was a factual

basis for both the affirmative act and intent components of aiding and abetting a Section

924(c) offense. The governmentʹs proffer of its proof on Count Two further supported

the district courtʹs conclusion that there was a factual basis for the plea.

10

Finally, Davis argues in passing that he was pressured to enter the plea

due to the late hour and pressure from his counsel, a claim that is conclusory and belied

by the record. Accordingly, we identify no error, let alone plain error, in the district

courtʹs acceptance of Davisʹs plea.

B. Conflict‐Free Counsel

Davis also argues that he was deprived of his right to conflict‐free counsel,

necessitating vacatur of his convictions. Specifically, Davis contends that the district

court erred by (1) failing to provide independent counsel for Davis to consult regarding

the potential conflict and (2) not providing sufficient time for Davis to contemplate the

consequences of waiver.

The question of whether a defendantʹs Sixth Amendment right to effective

assistance of counsel is violated ʺis a mixed question of law and fact requiring de novo

review.ʺ United States v. Kliti,

, 152‐53 (2d Cir. 1998). The district court has

ʺa special duty to ascertain that a defendantʹs waiver is knowing and intelligent.ʺ

Williams v. Meachum,

(2d Cir. 1991). In United States v. Curcio,

(2d Cir. 1982), we set forth procedures to be applied when there is a potential

concern regarding the defendantʹs right to representation by an attorney without a

conflict of interest. The district court is to:

(i) advise the defendant of the dangers arising from the particular conflict; (ii) determine through questions that are likely to be answered in narrative form whether the defendant understands those risks and freely chooses to run them; and (iii) give the defendant time to digest and

11

contemplate the risks after encouraging him or her to seek advice from independent counsel.

United States v. Iorizzo,

(2d Cir. 1986) (citing Curcio, 680 F.2d at 888‐90).

ʺIn evaluating a district courtʹs fidelity to this guidance, however, ʹwe are more

concerned with whether the defendant appreciated his predicament and made a

properly informed choice than we are with whether the trial judge recited any

particular litany of questions.ʹʺ United States v. Buissereth,

(2d Cir.

2011) (quoting United States v. Jenkins,

(2d Cir. 1991)).

The district court held Curcio hearings regarding two potential conflicts

with Anthony Riccoʹs representation of Davis on March 13, 2013, before the guilty plea,

and December 17, 2014, before the sentencing. As an initial matter, at each hearing,

Davis waived the ability to argue in the future that he did not have effective assistance

of counsel due to Riccoʹs conflicts. He offers no reason to ignore those waivers here.

Nevertheless, the record reveals that the district court ensured that Davis

was fully informed of the potential conflicts of interest involving his attorney and that

his subsequent waivers were both ʺknowingʺ and ʺintelligent.ʺ Williams,

. At each hearing, the district court first advised Davis of the problems that would

arise from the potential conflict, including hypothetical examples of ways that Ricco

would be unable to zealously represent Davis due to his obligations to Davisʹs brother.

As the district court made each point, Davis affirmatively indicated his understanding.

12

Furthermore, the district court determined through closed and open‐

ended questioning that Davis understood the possible risks before accepting his waiver

of the conflict. Davisʹs responses to the district courtʹs hypotheticals demonstrated that

he appreciated the potential risks arising from Riccoʹs prior representation of Davisʹs

brother. At the second hearing, Davis stated that he knew that Ricco previously

represented Allen, the target of the murder‐for‐hire conspiracy, and that ʺ[Ricco] might

have found out something from Mr. Allen that could help [Davis] in during [his]

sentencing in this case right here.ʺ Davis App. 80. When the district court explained

that Ricco would not be able to use such information to help Davis, Davis responded, ʺI

understand everything. I understand.ʺ

Finally, the district court acknowledged that it could not predict how the

conflict would affect Davis and offered Davis the opportunity to reflect on his decision

after consulting with independent counsel. Davis now argues that the district court

erred by not appointing counsel, citing Davisʹs lack of education and sophistication,

despite Davis declining the district courtʹs offer to do so during the hearing. Nothing

about Davisʹs background indicates that he would have been unable to appreciate the

seriousness of the decision without consulting with independent counsel. See, e.g.,

United States v. Lussier,

(2d Cir. 1995) (dismissing similar argument by a

defendant with only an eighth grade education).

13

Although the hearings were not long, there is no indication that Davis had

insufficient time to consider the risks of proceeding with Ricco as his counsel. The

district court offered Davis the opportunity to adjourn the hearing before deciding to

waive the conflict. At each proceeding, Davis indicated that he did not wish to consult

with counsel, and that he did not wish to take any additional time to reflect on his

decision. Accordingly, we conclude that the district court did not err in following the

procedures outlined in Curcio at either hearing, and that Davis knowingly and

intelligently waived his right to conflict‐free representation.3

We have considered all of Babilonia and Davisʹs additional arguments and

find them to be without merit. For the reasons stated herein, the judgments of the

district court are AFFIRMED. Babiloniaʹs motion for bail pending appeal is DENIED

as moot.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

3 Davis argued in his opening brief that his sentence was procedurally and substantively unreasonable. In his plea agreement, however, Davis waived his right to appeal a sentence of fewer than 322 monthsʹ imprisonment. On appeal, he does not argue that the waiver is invalid or unenforceable, and he was sentenced to 228 monthsʹ imprisonment. Accordingly, we affirm his sentence. See, e.g., United States v. Riggi,

, 147‐49 (2d Cir. 2011).

14