21-1744 Caro v. United States

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.

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 21st day of November, two thousand twenty-two. PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges, COLLEEN MCMAHON, District Judge. * _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-1744

JAMES CARO, JR., a.k.a. BEBO, Defendant-Appellant. † _____________________________________

*Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: Marsha R. Taubenhaus, New York, NY.

For Appellee: Nathanael T. Burris, Gregory L. Waples, Assistant United States Attorneys, for Nikolas P. Kerest, United States Attorney for the District of Vermont, Burlington, VT.

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

of Vermont (Christina Reiss, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

James Caro appeals from a judgment entered by the district court following

his guilty plea to charges of conspiracy to distribute heroin, fentanyl, and cocaine,

in violation of

(a), 841(b)(1)(A), 841(b)(1)(B), and 846, and

possession of a firearm in furtherance of a drug-trafficking crime, in violation of

(c)(1)(A). The district court sentenced Caro to two consecutive

fifty-month terms of imprisonment, to be followed by a five-year term of

supervised release. On appeal, Caro contends that his guilty plea should be

vacated because it was not knowing and voluntary and was not supported by an

2 adequate factual basis. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

Before a district court may accept a defendant’s guilty plea, Rule 11 of the

Federal Rules of Criminal Procedure requires the court to determine that the

defendant understands “the nature of each charge to which [he] is pleading.”

Fed. R. Crim. P. 11(b)(1)(G). While the “defendant’s mental status is central” to

that determination, “neither Rule 11 nor common sense dictates any particular

mode of inquiry,” since the district court is in “the best position to decide whether

the facts and circumstances of the case, or the defendant’s demeanor in the

courtroom, suggest the need for a deeper-than-usual inquiry into the defendant’s

mental condition.” United States v. Pattee,

(2d. Cir. 2016).

Instead, the “voluntariness of a guilty plea is reviewed by examining the totality

of the relevant circumstances.” Hanson v. Phillips,

(2d Cir. 2006).

When – as here – a defendant failed to object to an alleged Rule 11 violation in the

district court, reversal of his conviction is appropriate only if he can “demonstrate

that (1) there was error, (2) the error was plain, (3) the error prejudicially affected

his substantial rights, and (4) the error seriously affected the fairness, integrity[,]

3 or public reputation of judicial proceedings.” United States v. Youngs,

(2d Cir. 2012) (internal quotation marks omitted).

Here, the district court’s conclusion that Caro entered his guilty plea

knowingly and voluntarily is supported by the record of the plea proceeding. In

response to inquiries from the district court, Caro indicated that he had reviewed

the charges against him and his potential defenses with his counsel; had no

difficulty speaking, reading, or understanding the English language; understood

“what’s going on” during the plea proceeding, J. App’x at 26; was not under the

influence of any drug, medication, or alcoholic beverage; and had not been

threatened, pressured, or coerced into entering the guilty plea.

On appeal, Caro’s main contention is that the district court should have

“inquire[d] further” after Caro stated that he felt “airy” and “spacey” and made

an alleged mistake during the colloquy – claiming that he was not currently in

treatment for his drug and mental-health issues, even though he was receiving

weekly counseling. Caro’s Br. at 17. But the district court did, in fact, make

further inquiry on each of these points. With respect to Caro’s statements that he

felt “spacey” when he went to court, Caro’s counsel chalked this up to

“nervous[ness].” J. App’x at 26. And after Caro noted that he felt “airy,” the

4 district court inquired whether he was having a hard time hearing.

Caro

assured the district court that he “underst[ood] what’s going on” and that it just

“takes [him] a second to register.”

As for Caro’s alleged mistake about

whether he was still receiving drug treatment, defense counsel clarified that Caro

had “graduated from” intensive outpatient treatment and that he was now limited

to “once-a-week counseling.” Id. at 25. The district court then confirmed that

she had “covered all of [Caro’s] treatment for mental illness or addiction to a

narcotic drug of any kind,” id. at 26, and told Caro to “interrupt” or “[c]orrect” her

if Caro did not understand anything or she misunderstood him, id. The district

court also asked Caro whether he had “taken any drugs, medicines, or pills[,] or

drank any alcoholic beverage in the past 24 hours,” and whether there was

“anything interfering with [his] mental processes, [his] decision-making, or [his]

judgment,” to which Caro answered “[n]o.” Id. at 27. The district court then

confirmed with the government and defense counsel that neither of them “ha[d]

any doubt as to [Caro’s] competence to enter a valid plea.” Id. Based on this

record, we cannot find that the district court plainly erred in concluding that

Caro’s plea was entered knowingly or voluntarily.

5 Caro next argues that his guilty plea to the firearm charge should be vacated

because there was insufficient factual basis for finding a nexus between the pistol

found in his bedroom and the underlying drug-trafficking offense. Again, we

disagree.

Before accepting a defendant’s guilty plea, the district court “must

determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). To

make this determination, the district court need not analyze the evidence to

“assess whether it is even more likely than not that the defendant is guilty.”

United States v. Maher,

(2d. Cir. 1997). Rather, Rule 11 simply

requires the court to establish “that the conduct to which the defendant admits is

in fact an offense under the statutory provision under which he is pleading guilty.”

Id.; see also Pattee,

(“Even a reading of the indictment to the

defendant coupled with his admission of the acts described in it may provide a

sufficient factual basis for a guilty plea where the charge is uncomplicated, the

indictment detailed and specific, and the admission unequivocal.” (internal

quotation marks omitted)).

Here, Caro admitted to conduct that was in fact an offense under

section 924(c)(1)(A), which requires a “nexus” between the charged firearm and

6 the underlying drug-trafficking offense. United States v. Snow,

(2d Cir. 2006). To determine whether such a nexus exists, courts consider various

factors, including “the type of drug activity that is being conducted, accessibility

of the firearm, the type of the weapon, whether the weapon is stolen, the status of

the possession (legitimate or illegal), whether the gun is loaded, proximity to

drugs or drug profits, and the time and circumstances under which the gun is

found.”

at 62 n.6. The ultimate question is whether the possession of the

firearm “afforded some advantage (actual or potential, real or contingent) relevant

to the vicissitudes of drug trafficking.” United States v. Lewter,

(2d Cir. 2005); see Snow,

(finding that defendant’s possession of a

“loaded handgun[] . . . in the bedroom of [his] apartment where drugs were . . .

stored for sale” was sufficient to support his section 924(c) conviction).

In this case, the government stated during the plea proceeding that

approximately 3,700 bags of fentanyl and four firearms were found in Caro’s

residence; that one of the firearms found – a loaded 9-millimeter semiautomatic

pistol – was in Caro’s bedroom next to his bed; that Caro distributed the drugs

from his residence; and that Caro possessed the pistol in his bedroom to protect

his drug supply and proceeds. When the district court asked Caro whether the

7 government recited the facts accurately, Caro responded: “Yes. Yes.” J. App’x

at 41. Despite having admitted to conduct that satisfies the nexus requirement

under section 924(c)(1)(A), see Snow,

, 62–63 (“[A] drug dealer may be

punished under [section] 924(c)(1)(A) where the charged weapon is readily

accessible to protect drugs, drug proceeds, or the drug dealer himself.”), Caro now

attempts to challenge the validity of his guilty plea by pointing out a purported

inconsistency between his admission and his post-arrest statement that he used

the pistol to protect his family. But Caro’s post-arrest statements – which were

not made under oath and may well have been false – are irrelevant with respect to

a Rule 11 colloquy. See United States v. Doe,

(2d Cir. 2008) (stating

that “[a] defendant’s bald statements” that “contradict what he said at his plea

allocution” are insufficient to disturb his guilty plea (internal quotation marks

omitted)); United States v. Juncal,

(2d Cir. 2001) (clarifying that

“self-serving” and “contradictory” statements do not defeat the “strong

presumption” of veracity accorded to a defendant’s admission of guilt under

oath). Moreover, the fact that Caro may have also used the pistol to protect his

family is simply immaterial, as “a gun may be possessed for multiple purposes,”

and “possession for personal protection does not preclude possession in

8 furtherance of a drug[-]trafficking offense.” Lewter,

. Therefore,

in light of the overall record of the plea proceeding and – in particular – Caro’s

admission that he possessed the pistol in his bedroom to “protect[] his drug supply

and proceeds,” J. App’x at 41, we cannot find that there was an inadequate factual

basis to support Caro’s guilty plea to the firearm charge.

We have considered all of Caro’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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