20-2130-cr United States v. Sanders

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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 5th day of November, two thousand twenty-one. 4 5 PRESENT: AMALYA L. KEARSE, 6 RAYMOND J. LOHIER, JR., 7 JOSEPH F. BIANCO, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 20-2130-cr 15 16 REGINALD SANDERS, 17 18 Defendant-Appellant. ∗ 19 ------------------------------------------------------------------

∗ The Clerk of Court is respectfully directed to amend the caption as set forth above. 1 FOR DEFENDANT-APPELLANT: Louis V. Fasulo, Fasulo 2 Braverman & DiMaggio, LLP, 3 New York, NY 4 5 FOR APPELLEE: Michael Kim Krouse, Aline R. 6 Flodr, Stephanie L. Lake, 7 Robert B. Sobelman, Anna M. 8 Skotko, Assistant United States 9 Attorneys, for Damian 10 Williams, United States 11 Attorney for the Southern 12 District of New York, New 13 York, NY

14 Appeal from a judgment of the United States District Court for the

15 Southern District of New York (Paul A. Engelmayer, Judge).

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

17 AND DECREED that the judgment of the District Court is AFFIRMED.

18 Reginald Sanders appeals from a judgment of the United States District

19 Court for the Southern District of New York (Engelmayer, J.), following his plea

20 of guilty, convicting him of distribution of and conspiracy to distribute heroin, in

21 violation of 21 U.S.C §§ 841 and 846, and of possession of a firearm in furtherance

22 of a drug trafficking crime, in violation of

(c), and also sentencing

23 him principally to a term of 192 months’ imprisonment. On appeal, Sanders

2 1 argues that, among other alleged deficiencies, there was no factual basis for his

2 plea to the § 924(c) firearms charge. We assume the parties’ familiarity with the

3 underlying facts and prior record of proceedings, to which we refer only as

4 necessary to explain our decision to affirm.

5 Because Sanders raises his challenge to his conviction on the § 924(c)

6 charge for the first time on appeal, we review the challenge “only for plain

7 error.” United States v. Torrellas,

(2d Cir. 2006). 1 A plain error

8 is an error that prejudicially affected the defendant’s “substantial rights” and

9 “seriously affect[ed] the fairness, integrity or public reputation of judicial

10 proceedings.” United States v. Olano,

(1993) (quotation marks

11 omitted).

12 When a defendant pleads guilty to a § 924(c) offense, the record at the time

13 of the plea must establish a “specific nexus between the charged firearm and the

14 federal drug trafficking crime,” United States v. Chavez,

(2d

15 Cir. 2008), abrogated on other grounds by Dean v. United States,

1Unless otherwise stated, all internal quotation marks and alterations have been omitted.

3 1 (2017). In determining “that there is a factual basis for the plea,” Fed. R. Crim. P.

2 11(b)(3), “[a] court may rely on [the] defendant’s own admissions, information

3 from the government, or other information appropriate to the specific case,”

4 United States v. Andrades,

(2d Cir. 1999).

5 With these principles in mind, we conclude that the District Court did not

6 commit error, much less plain error, when it accepted Sanders’s plea to the

7 § 924(c) charge.

8 During the plea hearing Sanders admitted that he possessed a gun in

9 furtherance of his heroin trafficking crimes, and he did so without contesting any

10 element of the § 924(c) charge. See United States v. Smith,

(2d

11 Cir. 1998). He stated that from 2015 to 2018, he “agreed with others to distribute

12 narcotics, particularly heroin, weighing 1 kilogram or more,” and that on April

13 12, 2018, and June 5, 2018, he “possessed heroin with the intent to distribute it.”

14 App’x 50. He added that he possessed a firearm “[i]n furtherance of these

15 crimes,” and that he knew that “what [he] was doing was wrong and against the

16 law.” Id.; see also

at 50–51. These factual admissions were sufficient to

17 support the guilty plea, and the District Court was entitled to rely on them.

4 1 Sanders also separately argues that we should vacate his plea in light of

2 our summary order in United States v. Rosario,

(2d Cir. 2019),

3 which was decided after Sanders pleaded guilty and in which we vacated a

4 defendant’s guilty plea after concluding that there was an insufficient factual

5 basis for his plea to a firearm charge under § 924(c). But Rosario is entirely

6 distinguishable from this case. In contrast to Sanders’s allocution, quoted in

7 pertinent part above, Rosario’s allocution showed only that he possessed a gun

8 during the period of the conspiracy, not that he possessed the gun in any

9 connection with the conspiracy.

10 We have considered Sanders’s remaining arguments and conclude that

11 they are without merit. For the foregoing reasons, the judgment of the District

12 Court is AFFIRMED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15 16

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