19-132-cr United States v. Becton
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, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 21st day of September, two thousand twenty. 4 5 Present: 6 7 ROBERT D. SACK, 8 ROBERT A. KATZMANN, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. No. 19-132-cr 18 19 DARRYL HENDERSON, AMIN WILSON, 20 AKA AMIN IDI, AKA IDI, AKA 13, 21 NAATIFAH COSTELLO, AKA NATTY, 22 23 Defendants, 24 25 CHAROD BECTON, AKA FAMS, 26 27 Defendant-Appellant. 28 _____________________________________ 29 30 For Appellee: MICHAEL D. MAIMIN (Anna M. Skotko, on 31 the brief), Assistant United States Attorneys,
1 1 for Audrey Strauss, Acting United States 2 Attorney for the Southern District of New 3 York, New York, NY. 4 5 For Defendant-Appellant: JEREMIAH DONOVAN, Old Saybrook, CT. 6 7 Appeal from a judgment of the United States District Court for the Southern District of
8 New York (Castel, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
10 DECREED that the judgment of the district court is AFFIRMED.
11 Charod Becton appeals from a judgment entered on November 30, 2018, by the United
12 States District Court for the Southern District of New York (Castel, J.). On November 1, 2006,
13 Becton pleaded guilty to a 15-count superseding indictment before the late Judge Owen. Becton
14 later entered into a plea modification agreement before Judge Castel, pursuant to which the
15 government agreed to dismiss one of the 15 counts. In the plea modification agreement, Becton
16 waived his right to appeal any sentence of or below life plus five years’ imprisonment, and on
17 November 28, 2018, Judge Castel sentenced Becton to life plus five years’ imprisonment. We
18 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
19 the issues on appeal.
20 First, Becton argues that Judge Owen failed to comply with Federal Rule of Criminal
21 Procedure 11(b)(1)(D) because he did not inform Becton during his plea hearing that he was
22 entitled to court-appointed counsel. Becton also argues that there was no factual basis for his plea
23 to Count Ten of the superseding indictment, which charged Becton with attempted arson. See Fed.
24 R. Crim. P. 11(b)(3). Becton is permitted to raise these challenges notwithstanding his appeal
25 waiver. See United States v. Lloyd, 901 F.3d 111, 118 (2d Cir. 2018), cert. denied, 140 S. Ct. 55
26 (2019); United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006). However, because Becton failed
2 1 to raise these challenges below, we review them for plain error. See United States v. Garcia, 587
2 F.3d 509, 515 (2d Cir. 2009); United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). “To
3 satisfy the plain-error standard, the defendant must demonstrate, inter alia, that (1) there was error,
4 (2) the error was plain, and (3) the error prejudicially affected his substantial rights.” Torrellas,
5 455 F.3d at 103. 1 “In order to demonstrate that a Rule 11 error affected his substantial rights, a
6 defendant must show a reasonable probability that, but for the error, he would not have entered the
7 plea.” Id. “In determining whether the defendant has made such a showing, we consider, inter alia,
8 any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s
9 decision to plead guilty, as well as the overall strength of the Government’s case.” Id.
10 Beginning with Becton’s Rule 11(b)(1)(D) challenge, we conclude that the district court
11 did not plainly err because there is no reasonable probability that Becton would not have entered
12 his guilty plea if Judge Owen had informed him that he was entitled to court-appointed counsel.
13 Although Judge Owen stated only that Becton was “entitled to a speedy and public trial by a judge
14 and a jury, with the assistance of counsel, at all stages,” App’x 118:23–24, Becton had been
15 informed at multiple prior proceedings—including at his initial appearance and his arraignments
16 on two superseding indictments—that a lawyer would be appointed for him if he could not afford
17 one. Perhaps more significantly, Becton was represented by appointed counsel for most of the time
18 between his 2002 arrest and his 2006 plea, including at the plea hearing itself. We do not see how
19 informing Becton at his plea hearing of his right to appointed counsel could have caused him not
20 to plead guilty. 2
1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 2 On June 14, 2006, the district court entered an order authorizing interim payments to Becton’s appointed counsel “[b]ecause of the expected length of the trial in this case, and the
3 1 We are also unpersuaded by Becton’s factual basis challenge. Becton argues that the
2 district court erred by entering judgment on his plea to Count Ten of the superseding indictment,
3 which charged Becton with attempted arson, in violation of 18 U.S.C. § 844(i). 3 As relevant here,
4 the indictment alleged that Becton participated in a conspiracy to rob a drug stash house and that,
5 during the robbery, he and his co-conspirators murdered the occupants and attempted to set fire to
6 the building. At his plea hearing, Becton testified that he did not personally try to start the fire and
7 that he learned only afterwards that one of his co-conspirators was responsible. Becton argues on
8 appeal that this testimony was insufficient to support an attempted arson conviction under § 844(i)
9 and that he should be permitted to withdraw his guilty plea to Count Ten.
10 Regardless of whether Becton personally tried to start the fire, we conclude that there was
11 a factual basis for his plea to Count Ten. “[W]e have held that a conspirator can be held responsible
12 for the substantive crimes committed by his co-conspirators to the extent those offenses were
13 reasonably foreseeable consequences of acts furthering the unlawful agreement, even if the
14 conspirator did not himself participate in the substantive crimes.” United States v. Salameh, 152
15 F.3d 88, 151 (2d Cir. 1998) (per curiam); see Pinkerton v. United States, 328 U.S. 640, 647 (1946).
16 This is true even where the substantive crime at issue is an attempt. See, e.g., United States v.
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19-132-cr United States v. Becton
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, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 21st day of September, two thousand twenty. 4 5 Present: 6 7 ROBERT D. SACK, 8 ROBERT A. KATZMANN, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. No. 19-132-cr 18 19 DARRYL HENDERSON, AMIN WILSON, 20 AKA AMIN IDI, AKA IDI, AKA 13, 21 NAATIFAH COSTELLO, AKA NATTY, 22 23 Defendants, 24 25 CHAROD BECTON, AKA FAMS, 26 27 Defendant-Appellant. 28 _____________________________________ 29 30 For Appellee: MICHAEL D. MAIMIN (Anna M. Skotko, on 31 the brief), Assistant United States Attorneys,
1 1 for Audrey Strauss, Acting United States 2 Attorney for the Southern District of New 3 York, New York, NY. 4 5 For Defendant-Appellant: JEREMIAH DONOVAN, Old Saybrook, CT. 6 7 Appeal from a judgment of the United States District Court for the Southern District of
8 New York (Castel, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
10 DECREED that the judgment of the district court is AFFIRMED.
11 Charod Becton appeals from a judgment entered on November 30, 2018, by the United
12 States District Court for the Southern District of New York (Castel, J.). On November 1, 2006,
13 Becton pleaded guilty to a 15-count superseding indictment before the late Judge Owen. Becton
14 later entered into a plea modification agreement before Judge Castel, pursuant to which the
15 government agreed to dismiss one of the 15 counts. In the plea modification agreement, Becton
16 waived his right to appeal any sentence of or below life plus five years’ imprisonment, and on
17 November 28, 2018, Judge Castel sentenced Becton to life plus five years’ imprisonment. We
18 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
19 the issues on appeal.
20 First, Becton argues that Judge Owen failed to comply with Federal Rule of Criminal
21 Procedure 11(b)(1)(D) because he did not inform Becton during his plea hearing that he was
22 entitled to court-appointed counsel. Becton also argues that there was no factual basis for his plea
23 to Count Ten of the superseding indictment, which charged Becton with attempted arson. See Fed.
24 R. Crim. P. 11(b)(3). Becton is permitted to raise these challenges notwithstanding his appeal
25 waiver. See United States v. Lloyd, 901 F.3d 111, 118 (2d Cir. 2018), cert. denied, 140 S. Ct. 55
26 (2019); United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006). However, because Becton failed
2 1 to raise these challenges below, we review them for plain error. See United States v. Garcia, 587
2 F.3d 509, 515 (2d Cir. 2009); United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). “To
3 satisfy the plain-error standard, the defendant must demonstrate, inter alia, that (1) there was error,
4 (2) the error was plain, and (3) the error prejudicially affected his substantial rights.” Torrellas,
5 455 F.3d at 103. 1 “In order to demonstrate that a Rule 11 error affected his substantial rights, a
6 defendant must show a reasonable probability that, but for the error, he would not have entered the
7 plea.” Id. “In determining whether the defendant has made such a showing, we consider, inter alia,
8 any record evidence tending to show that a misunderstanding was inconsequential to a defendant’s
9 decision to plead guilty, as well as the overall strength of the Government’s case.” Id.
10 Beginning with Becton’s Rule 11(b)(1)(D) challenge, we conclude that the district court
11 did not plainly err because there is no reasonable probability that Becton would not have entered
12 his guilty plea if Judge Owen had informed him that he was entitled to court-appointed counsel.
13 Although Judge Owen stated only that Becton was “entitled to a speedy and public trial by a judge
14 and a jury, with the assistance of counsel, at all stages,” App’x 118:23–24, Becton had been
15 informed at multiple prior proceedings—including at his initial appearance and his arraignments
16 on two superseding indictments—that a lawyer would be appointed for him if he could not afford
17 one. Perhaps more significantly, Becton was represented by appointed counsel for most of the time
18 between his 2002 arrest and his 2006 plea, including at the plea hearing itself. We do not see how
19 informing Becton at his plea hearing of his right to appointed counsel could have caused him not
20 to plead guilty. 2
1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 2 On June 14, 2006, the district court entered an order authorizing interim payments to Becton’s appointed counsel “[b]ecause of the expected length of the trial in this case, and the
3 1 We are also unpersuaded by Becton’s factual basis challenge. Becton argues that the
2 district court erred by entering judgment on his plea to Count Ten of the superseding indictment,
3 which charged Becton with attempted arson, in violation of 18 U.S.C. § 844(i). 3 As relevant here,
4 the indictment alleged that Becton participated in a conspiracy to rob a drug stash house and that,
5 during the robbery, he and his co-conspirators murdered the occupants and attempted to set fire to
6 the building. At his plea hearing, Becton testified that he did not personally try to start the fire and
7 that he learned only afterwards that one of his co-conspirators was responsible. Becton argues on
8 appeal that this testimony was insufficient to support an attempted arson conviction under § 844(i)
9 and that he should be permitted to withdraw his guilty plea to Count Ten.
10 Regardless of whether Becton personally tried to start the fire, we conclude that there was
11 a factual basis for his plea to Count Ten. “[W]e have held that a conspirator can be held responsible
12 for the substantive crimes committed by his co-conspirators to the extent those offenses were
13 reasonably foreseeable consequences of acts furthering the unlawful agreement, even if the
14 conspirator did not himself participate in the substantive crimes.” United States v. Salameh, 152
15 F.3d 88, 151 (2d Cir. 1998) (per curiam); see Pinkerton v. United States, 328 U.S. 640, 647 (1946).
16 This is true even where the substantive crime at issue is an attempt. See, e.g., United States v.
anticipated hardship on counsel in undertaking representation full-time for such period without compensation.” Dist. Ct. Dkt. No. 118. Becton argues that if he had seen this order without knowing that he was entitled to appointed counsel, he might have become concerned that his counsel would withdraw during trial as a result of financial hardship. We find this argument unpersuasive. Not only is there no evidence that Becton saw the order in question, but it is also implausible that he would have inferred from the authorization of payments to his counsel that later payments might not be authorized. Moreover, as noted above, by the time of Becton’s plea hearing in 2006, his appointed counsel had been representing him for more than four years. 3 As relevant here, § 844(i) makes it a crime to “maliciously damage[] or destroy[], or attempt[] to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i).
4 1 Romero, 897 F.2d 47, 51–52 (2d Cir. 1990). Here, the attempted arson was reasonably foreseeable,
2 particularly given that Becton and his co-conspirators had just murdered the three witnesses to
3 their robbery. This conclusion is bolstered by Becton’s concession, in a statement of uncontested
4 facts entered in connection with his plea modification agreement, that he and his co-conspirators
5 were jointly responsible for the crimes committed in the stash house. Moreover, even if the
6 foreseeability of the attempted arson were a close question, it was not plain error for the district
7 court to conclude that a factual basis existed for Becton’s guilty plea to Count Ten.
8 In addition to raising his Rule 11(b)(1)(D) and factual basis challenges, Becton argues that
9 his sentence was procedurally and substantively unreasonable. Unlike the arguments above,
10 Becton’s challenge to his sentence is barred by the appeal waiver in his plea modification
11 agreement. See United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (per curiam). Becton argues
12 that his appeal waiver was not made knowingly and voluntarily because Judge Castel failed to
13 instruct him about various kinds of appeals that he was permitted to bring, and because Judge
14 Castel’s description of his appeal waiver was “unduly restrictive.” Appellant’s Br. 22. But Becton
15 does not identify any appeals that he wishes to bring, or any arguments that he would like to raise,
16 that are barred by Judge Castel’s purportedly erroneous instruction. Moreover, Judge Castel’s
17 discussion of Becton’s appeal waiver is materially indistinguishable from other colloquies that we
18 have endorsed in prior cases. See, e.g., United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000)
19 (per curiam). Because Becton has failed to identify an error—let alone a plain error, see United
20 States v. Cook, 722 F.3d 477, 479 (2d Cir. 2013)—in Judge Castel’s instructions, we hold that
21 Becton’s appeal waiver is enforceable, and his challenge to his sentence is barred.
5 1 We have considered Becton’s remaining arguments on appeal and have found in them no
2 basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.
3 FOR THE COURT: 4 5 Catherine O’Hagan Wolfe, Clerk