15‐2663‐cr United States v. Shapiro

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 6th day of October, two thousand seventeen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, JANE A. RESTANI, Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 15‐2663‐cr

ROBERT SHAPIRO, AKA Robert Weldon, AKA Robert Krimis, AKA Ted Ely, AKA Bob Cremins, AKA Robert Gurian, AKA William Thomas Stovers, AKA Robert Bullis, AKA James Nally, Defendant‐Appellant.

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* Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

FOR APPELLEE: MONICA K. CASTRO, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: ANDREW FREIFELD, Law Office of Andrew Freifeld, New York, New York.

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

New York (Ross, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Robert Shapiro appeals from a judgment entered

August 17, 2015, revoking his supervised release and sentencing him to three yearsʹ

imprisonment (minus 297 days for time served). Shapiro contends that the sentence

exceeds the maximum sentence permitted by law and that the district court failed to

comply with the requirements of Rule 32.1(b)(2) of the Federal Rules of Criminal

Procedure. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

Following a jury trial in 1994, Shapiro was convicted of wire fraud,

possession of a stolen check, and sale of stolen goods. On March 28, 1996, the district

court (Trager, J.) sentenced him to a fifteen‐year term of imprisonment for the wire

fraud conviction and two ten‐year terms, to run consecutively, on the sale and

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possession convictions. Shapiro appealed the sentence on the grounds that his conduct

did not affect a financial institution within the meaning of

and that the

statutory maximum for his wire fraud conviction therefore was five years rather than

thirty years. United States v. Shapiro,

(2d Cir. Jan. 30, 1997)

(summary order). We declined to address the financial institution issue and affirmed

the sentence on other grounds.

After a jury trial in December 1997, Shapiro was convicted of additional

crimes: attempting to escape from federal custody and forging the signature of a federal

court official. United States v. Shapiro,

, at *1 (2d Cir. Dec. 23, 1999)

(summary order). The district court (Block, J.) sentenced Shapiro to thirty‐three months

imprisonment, consecutively to his earlier sentence.

We affirmed the sentence.

.

While he was on supervised release after completing his terms of

imprisonment, proceedings were brought against Shapiro for supervised release

violations. In three separate proceedings ‐‐ first on March 31, 2011, second on

September 12, 2011, and third on August 14, 2015 ‐‐ the district court (Ross, J.)

determined that Shapiro violated the conditions of his supervised release.

The third violation, the focus of this appeal, arose from Shapiroʹs arrest in

October 2011 by New York State authorities for the attempted rape of a twelve‐year old

girl. On May 28, 2014, Shapiro was convicted, following his guilty plea, of three state

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crimes, including attempted criminal sexual act in the first degree (involving a victim

less than thirteen years old). He was sentenced to 78 monthsʹ imprisonment.

At the August 14, 2015 hearing, Shapiro, proceeding pro se,1 declined a

revocation hearing, pleaded guilty to violating his supervisory terms by engaging in

attempted sexual assault and related offenses, and presented his sentencing arguments

to the district court. The court identified the statutory maximum for the violation as

three years, with credit for time served, because (1) the underlying wire fraud

conviction carried a statutory maximum of thirty years under

and thus

his initial crime was a Class B felony under

, (2) the statutory maximum

for a supervisory violation in such an instance is three years under

(e)(3), and (3) under

(h), the sentence for the violation must be

reduced by any time served for a prior revocation of supervised release.2 The court

concluded that the Guidelines sentencing range was 33 to 41 months, discussed the

statutory sentencing factors and Shapiroʹs numerous supervisory violations, stated he

would ʺnever cease to be a danger to the public,ʺ App. 201, and sentenced him to ʺthree

years less 297 days, the maximum sentence [it] can impose on this violation,ʺ App. 202.

Final judgment entered shortly thereafter. This appeal followed.

1 Shapiro had been represented by four different attorneys before he requested and was granted leave to proceed pro se. 2 The presentence report stated that ʺthe maximum incarceration term can only be two years.ʺ

Presentence Report at 6. At the August 14, 2015 hearing, however, the district court made clear ‐‐ before Shapiro pleaded guilty ‐‐ that in its view the maximum sentence was three years less 297 days.

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Now represented by counsel, Shapiro challenges his sentence for the

supervisory violation on two grounds. First, he asserts that his 1996 wire fraud

conviction did not affect a financial institution, and thus it did not carry a statutory

maximum of thirty years under § 1343 or qualify as a Class B felony under § 3559. He

insists that his conviction instead triggered a statutory maximum of five years, which

classified it as a Class D felony and exposed him under § 3583(e)(3) to a maximum of

two years ‐‐ not three ‐‐ of imprisonment for the supervisory violation. He declares that

the court should have sentenced him to two years less 297 days, rather than three years

less 297 days.

We review the sentencing decision of the district court for plain error

because, as Shapiro concedes, he did not raise this argument below during the

revocation and sentencing proceeding for his supervisory violation. United States v.

Warren,

(2d Cir. 2003) (ʺWarren neither challenged his underlying

conviction and sentence nor objected to the three‐year sentence in the supervised

release revocation proceeding. We therefore review only for plain error under Fed. R.

Crim. P. 52(b).ʺ). Plain error is error that is plain, affects substantial rights, and

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Bonilla,

(2d Cir. 2010).

Here, ʺ[w]e find no error, much less plain error, because . . . the validity of

an underlying conviction or sentence may not be collaterally attacked in a supervised

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release revocation proceeding and may be challenged only on direct appeal or through

a habeas corpus proceeding.ʺ Warren,

. Because Shapiro was unsuccessful

in his direct appeal of his sentences for the underlying convictions, see Shapiro,

, he may not re‐litigate the issues again in this appeal of his sentence for the

supervisory violation.

Moreover, while Shapiro did note his belief that he faced a maximum of

two years, that belief was based on the information in the presentence report, which the

district court clarified. He never argued that the 1996 conviction was incorrectly

deemed a Class B felony when it was actually a Class D felony. As Shapiro did not

raise the issue himself, he cannot now reasonably argue that the district court

committed plain error in failing to raise the issue sua sponte. Moreover, at a status

conference on April 13, 2015, when Shapiro was still represented by counsel, the district

court, the government, and defense counsel appeared to be in agreement that the

maximum was three years.

Second, Shapiro alleges that the district court failed to comply with

Federal Rule of Criminal Procedure 32.1(b)(2) during the revocation phase of the

August 14, 2015 proceeding. Rule 32.1(b)(2) requires the court, before revoking a term

of supervised release, to hold a revocation hearing, unless waived, and to give written

notice of the charged violation, to disclose evidence of the violation, and to provide an

opportunity to submit evidence, make a statement, and present information in

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mitigation. Shapiro claims that he received no written notice, disclosure of evidence, or

opportunity to file sentencing submissions, present evidence, and offer mitigating

circumstances. We disagree.

Shapiroʹs assertions are not supported by the record. First, the record

reflects that the probation department prepared a written violation report and that,

before Shapiro requested to proceed pro se, three of his prior attorneys informed the

court that Shapiro had either read the violation report or reviewed the allegations in the

report. Second, both the court and the government reviewed the evidence of Shapiroʹs

violation ‐‐ his plea allocution and certificate of conviction in state court for attempted

sexual assault and other offenses ‐‐ with him at the August 14, 2015 proceeding. Third,

the transcript of the proceeding shows that, during the revocation phase, the court

inquired if Shapiro wanted to hold a hearing or plead guilty to the violation, and

Shapiro replied that he ʺ[m]ight as well just plead guilty and get it over with.ʺ

App. 184. During the sentencing phase, the court afforded Shapiro an opportunity,

which he took, to present oral argument and mitigating circumstances. The transcript

therefore indicates that Shapiro waived his right to a revocation hearing and was

indeed given an opportunity to present sentencing evidence and mitigating information

before the court. Accordingly, the district court conducted the August 14, 2015

proceeding in compliance with Rule 32.1(b)(2) and we decline to vacate Shapiroʹs

sentence on this basis.

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We have considered Shapiroʹs remaining arguments and find them to be

without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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