22-2879 United States v. Walker

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 26th day of February, two thousand twenty-four.

PRESENT:

PIERRE N. LEVAL, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-2879

NAMIR WALKER,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: DAVID L. MCCOLGIN, Law Office of David L. McColgin, Esq., Charlotte, VT.

For Appellee: LAUREN C. CLARK (Robert S. Ruff, on the brief), Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT.

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

of Connecticut (Sarah A. L. Merriam, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Namir Walker appeals from a judgment of conviction following his guilty

plea to possession of a firearm in furtherance of a drug trafficking offense, in

violation of

(c). The district court sentenced Walker to the

mandatory minimum term of sixty months’ imprisonment, to be followed by two

years’ supervised release. On appeal, Walker argues (for the first time) that the

district court violated Federal Rule of Criminal Procedure 11 by failing to ensure

that Walker understood the nature of the charge against him and that there was

an adequate factual basis for the plea; that his attorney was constitutionally

2 ineffective for failing to object to these purported violations of Rule 11; and that the

district court abused its discretion in failing to conduct a sufficient inquiry

regarding Walker’s request for new counsel. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal.

We first address Walker’s argument that his plea, conviction, and sentence

should be vacated in light of two purported violations of Rule 11. Because

Walker did not raise either of his Rule 11 challenges in the district court, we review

his claims for plain error. See United States v. Tarbell,

(2d Cir.

2013). To prevail on plain-error review, Walker must demonstrate that the

district court committed a “clear or obvious” error that “affected [his] substantial

rights” and that “affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Marcus,

, 262 (2010) (internal quotation

marks and alterations omitted); see also United States v. Collymore,

(2d Cir. 2023) (explaining that, to establish prejudice to his substantial rights, a

defendant must demonstrate “a reasonable probability that, but for the error, he

would not have entered the plea” (internal quotation marks omitted)).

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

of, and determine that the defendant understands, . . . the nature of each charge to

3 which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). “A district court

is not required to follow any particular formula in determining that [the]

defendant understands the nature of the charge to which he is pleading guilty.”

United States v. Andrades,

(2d Cir. 1999); see also McCarthy v. United

States,

, 467 n.20 (1969) (explaining that “matters of reality, and not

mere ritual, should be controlling” in determining the appropriate scope of the

Rule 11 inquiry (internal quotation marks and alterations omitted)). Courts must

instead “determine by some means that the defendant actually understands the

nature of the charges.” United States v. Maher,

(2d Cir. 1997).

A court may inform a defendant regarding the nature of the charge by, for

example, “describing the elements of the offense in the court’s own words,” or

“reading the indictment . . . where the pertinent count spells out the elements of

the offense and the circumstances indicate that this will be sufficient.” Id.; see also

Andrades,

(stating that Rule 11 “is satisfied where the charging

instrument plainly describes the offense and defendant acknowledges that he

read, understood, and discussed with his attorney that legal document”).

Rule 11 additionally requires district courts to determine that there is a

“factual basis” for a defendant’s plea of guilty before accepting it. Fed. R. Crim.

(b)(3). In making that determination, a court “may look . . . to any facts on

the record at the time of the plea proceeding.” United States v. Garcia,

(2d Cir. 2009) (internal quotation marks omitted); see also United States v.

Smith,

(2d Cir. 1998) (stating that “[t]he factual basis of the plea

. . . need not be drawn directly from the defendant” and may be based on “answers

provided by counsel for the defense and government”).

Here, the district court did not plainly err in determining that Walker

understood the nature of the charge against him – in particular, the requirement

that the firearm Walker possessed was used “in furtherance” of a drug crime. See

(c)(1)(A). The record reflects that the district court read aloud the

relevant charge in the indictment (which contained the “in furtherance” language),

verified that Walker had discussed the case with his attorney and had reviewed a

copy of the indictment, and confirmed with a “yes” from Walker that he

understood the charge therein. See United States v. Glen,

(2d Cir.

2005) (holding that defendant received “sufficient notice of the meaning” of the

charge against him when he “received a copy of the indictment before the plea

hearing and heard the indictment read at that hearing”); Frederick v. Warden,

Lewisburg Corr. Facility,

, 197–98 (2d Cir. 2002) (concluding that there

5 is sufficient notice “where the charging instrument plainly describes the offense

and defendant acknowledges that he read, understood, and discussed with his

attorney that legal document” (internal quotation marks omitted)). The record

further reflects that the district court specifically asked Walker how he possessed

a firearm “in furtherance” of his drug trafficking offense, provided several correct

examples of how the “in furtherance” element could be satisfied, and allowed

Walker to discuss the issue with his attorney before answering the court’s

question. Following an off-the-record discussion between Walker and his

attorney, defense counsel reiterated that the “in furtherance” element would be

satisfied if “one of the purposes [of possessing the firearm was] to protect . . . drugs

or cash.” App’x at 79. The district court agreed with counsel’s statement, after

which Walker admitted his guilt. See

at 79–80. We therefore cannot agree

with Walker’s contention that the district court’s passing reference to the

requirement that the firearm must somehow be “related” or “connected to” the

drug trafficking activity constituted plain error. See United States v. Snow,

(2d Cir. 2006) (explaining that the “in furtherance” element is satisfied

if the government establishes “the existence of a specific ‘nexus’ between the

charged firearm and the charged drug selling operation”); see also United States v.

6 Farooq,

(2d Cir.) (“The contention that even in a plea proceeding

the judge must deliver to the defendant the equivalent of a jury charge finds no

support in the language of Rule 11 and runs counter to the legislative history.”

(internal quotation marks and alterations omitted)), cert. denied,

(2023).

But even if we were to assume that the district court erred in explaining the

precise meaning of “in furtherance,” Walker has failed to demonstrate that this

error affected his substantial rights – e.g., that “but for the error, he would not have

entered the plea.” Collymore,

(internal quotation marks omitted).

The record reflects that – in exchange for Walker’s plea – the government agreed

that it would move to dismiss the first count of the indictment, which charged him

with possession with the intent to distribute controlled substances. There is no

question that Walker’s applicable Guidelines range would have been substantially

higher had he been convicted of both counts at trial, and Walker does not dispute

that he was fully aware of this benefit at the time he pleaded guilty. What is more,

as discussed in greater detail below, the record contains ample evidence

supporting the charge to which Walker pleaded guilty (and the narcotics offense

that was dismissed pursuant to the plea agreement), which further undercuts any

7 contention that he would have proceeded to trial but for this purported error. See

United States v. Rodriguez,

(2d Cir. 2013); United States v. Torrellas,

(2d Cir. 2006).

It also bears noting that Walker did not attempt to withdraw his guilty plea

or otherwise challenge the sufficiency of his allocution until nine days after his

sentencing, by which time he had secured the benefit of his plea agreement and

the dismissal of the narcotics count charged in the indictment. See Dist. Ct. Doc.

No. 90 at 4–5, 8 (confirming that Walker had no objections to the final version of

the presentence report and arguing that he should receive a Guidelines sentence

because he “accepted responsibility fairly quickly” and admitted that he was “at

fault for what [he] did”); Dist. Ct. Doc. No. 70 ¶¶ 21, 129 (presentence report

providing that “Walker committed a drug trafficking crime[] . . . and knowingly

possessed a firearm in furtherance of that activity,” and “expressed a mature

understanding of his present situation” to the probation officer); see also United

States v. Dominguez Benitez,

, 83–86 (2004) (holding that a court may look

to “the entire record,” including materials from “sentencing,” to determine

whether there is a “reasonable probability that, but for the error, [the defendant]

would not have entered the plea”). Walker has therefore failed to establish a

8 reasonable probability that, but for the alleged error, he would not have pleaded

guilty.

Nor did the district court plainly err in determining that there was an

adequate factual basis for the plea. During the plea colloquy, Walker admitted

that “[he] had some drugs [he] was going to sell and [he] had a gun at that time.”

App’x at 78. The government additionally noted that, had the case proceeded to

trial, it would have been prepared to present evidence that the loaded firearm was

located in a vehicle with Walker in close proximity to the sale-quantities of drugs

that Walker possessed at the time of his arrest. See Snow,

(concluding that proximity of loaded handguns to drugs, paraphernalia, and

proceeds was sufficient to support “in furtherance” element); United States v.

Lewter,

, 322–23 (2d Cir. 2005) (similar). And, as the district court

recognized, evidence presented during the course of the motion to suppress

regarding the seizure of the loaded firearm near Walker’s seat in the car and the

circumstances of Walker’s arrest provided additional support for the conclusion

that there was an adequate factual basis here. See Garcia,

; see also

Snow,

n.6 (noting that the requisite nexus can be established based

on, among other things, “whether the gun is loaded, proximity to drugs or drug

9 profits, and the time and circumstances under which the gun is found” (internal

quotation marks omitted)). The district court’s conclusion that there was an

adequate factual basis for the plea did not constitute plain error.

Walker’s next argument – that he was denied the effective assistance of

counsel when his attorney failed to raise these same Rule 11 objections before the

district court – is equally unavailing. As noted above, Walker has failed to

demonstrate a “reasonable probability” that “he would not have [pleaded] guilty”

but for the purported Rule 11 errors. United States v. Arteca,

(2d

Cir. 2005).

Walker’s argument that the district court erred by failing to conduct a

sufficiently probing inquiry regarding his motion for appointment of new counsel

likewise fails. We review a district court’s denial of a defendant’s request for

substitute counsel for abuse of discretion. See United States v. Simeonov,

(2d Cir. 2001). In determining whether a district court has abused its

discretion, we consider “(1) whether the defendant’s motion for new counsel was

timely; (2) whether the district court adequately inquired into the matter; (3)

whether the conflict between defendant and attorney was so great that it resulted

in a total lack of communication preventing an adequate defense; and (4) whether

10 the defendant substantially and unjustifiably contributed to the breakdown in

communication.” United States v. Hsu,

, 122–23 (2d Cir. 2012) (internal

quotation marks omitted). Notably, although the Sixth Amendment affords a

right to counsel, it does not require district courts to ensure “a ‘meaningful

relationship’ between an accused and his counsel.” Morris v. Slappy,

(1983).

Contrary to Walker’s contention, the district court did not abuse its

discretion in denying Walker’s motion for substitute counsel without conducting

a hearing or engaging in a colloquy with him directly in court. The record reflects

that – promptly after receiving Walker’s letter request for the appointment of new

counsel – the district court directed Walker’s attorney to contact Walker to

determine “whether [he] wishe[d] to pursue a request for appointment of new

counsel, or whether the request [wa]s withdrawn.” App’x at 6. Walker’s

attorney thereafter informed the district court that he and Walker had discussed

the issue for thirty minutes and that Walker was “amenable to having [him]

continue as his attorney on this matter.”

.

Walker’s contention that he had “no opportunity to dispute counsel’s

claim[]” that he agreed to having counsel continue as his attorney, Reply at 8, is

11 belied by the record. For example, at two subsequent proceedings, Walker

confirmed that he understood that his attorney would be taking certain actions on

his behalf, without raising any concerns regarding the attorney’s ongoing

representation. Moreover, when asked at his change of plea hearing whether he

was satisfied with his attorney’s representation, he responded, “Yes.” App’x at

53. And, in his plea agreement, Walker “acknowledge[d] his complete

satisfaction with the representation and advice received from his . . . attorney.”

; see also

(discussing this provision in summarizing the plea

agreement at the change of plea hearing). In light of Walker’s representations

that he was satisfied with counsel and the fact that Walker never again complained

about his counsel’s representation until after sentencing, we are not persuaded

that the district court abused its discretion in denying Walker’s motion and failing

to conduct further inquiry regarding Walker’s request for new counsel.

We have considered Walker’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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