United States v. Cayce

319 F. App'x 23
CourtCourt of Appeals for the Second Circuit
DecidedApril 2, 2009
DocketNo. 08-3784-cr
StatusPublished

This text of 319 F. App'x 23 (United States v. Cayce) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cayce, 319 F. App'x 23 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Defendant-appellant Richard Cayce appeals from a judgment of conviction entered on July 23, 2008, following his plea of guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 371. The District Court sentenced Cayce principally to a thirty-seven month term of imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

First, Cayce’s argument that, under Rule 59(a) of the Federal Rules of Criminal Procedure, he should have been allowed ten days to contest the recommendation of the magistrate judge is foreclosed by our holding in United States v. Brumer that the statutory objection period does not apply to recommendations that a plea be accepted. 528 F.3d 157, 160 (2d Cir.2008) (per curiam); see also Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998) (per curiam) (holding that 28 U.S.C. § 636(b)(3) “does not require the magistrate judge to submit proposed findings and recommendations” and “does not provide a party with ten days to file written objections with the district court”). Insofar as Rule 59(a) clarifies the procedures set forth in 28 U.S.C. § 636(b)(1), the holding of Brumer applies with equal force to Cayce’s challenge here.

[25]*25Second, Cayce argues that neither the District Court’s acceptance of his guilty plea on the evening of July 7, 2006— by telephonic notification to the government — nor the District Court’s July 10, 2006 endorsement of the transcript of the plea proceedings satisfies Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 does not specify any procedure that must be followed before a district court can accept the guilty plea of a defendant who allocuted before a magistrate judge. And nothing in Rule 11 prohibits the in camera review of plea proceedings before a magistrate judge, the oral acceptance of that plea, or the endorsement of a transcript as the means of showing that a plea has been accepted by the district court. Indeed, in Brumer, this Court approved of the acceptance of a guilty plea under similar circumstances, noting “defendants were not entitled to be present when the district judge reviewed the allocution transcripts and signed the orders accepting the pleas.” 528 F.3d at 160. Accordingly, there is no basis to question the District Court’s acceptance of Cayce’s guilty plea.

Third, Cayce contends that the District Court erred by failing to hold a Fatico hearing to calculate the financial loss that was reasonably foreseeable to Cayce. “The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes. All that is required is that the court afford the defendant some opportunity to rebut the Government’s allegations.” United States v. Phillips, 431 F.3d 86, 93 (2d Cir.2005) (internal quotation marks omitted). At the sentencing hearing, Cayce argued that he could not reasonably foresee that his coconspirators in Atlanta would solicit and defraud victims on their own initiative. Under Cayce’s reasoning, he could be held responsible for losses incurred only by the victims that he referred to his coconspirators, and not for the losses incurred by victims his cocon-spirators found on their own. The District Court rejected this argument, asking “[d]id [Cayce] think [the Atlanta-based conspirators] w[ere] sitting on [them] hands? I doubt it. That doesn’t seem to be a proper inference.” J.A. 265-66. The District Court concluded that it was reasonably foreseeable to Cayce that the Atlanta-based coconspirators would also identify their own victims, and therefore losses incurred by those victims were reasonably foreseeable to Cayce. In light of the nature of Cayce’s argument, there was no need for an evidentiary hearing.

Fourth, Cayce argues that he should have been allowed to withdraw his guilty plea as a matter of right under Rule 11(d)(1) (authorizing withdrawal before acceptance by the district court) or, in the alternative, pursuant to Rule 11(d)(2)(B), which authorizes withdrawal when “the defendant can show a fair and just reason for requesting the withdrawal.”

Cayce could not have withdrawn his plea pursuant to Rule 11(d)(1), because the District Court accepted his plea prior to the filing of Cayce’s motion to withdraw his plea. Cayce argues that his withdrawal motion was filed before the District Court docketed the endorsed transcript, but that is so only because the District Court “acceded to [Cayce’s] request [that no further action be taken regarding the plea], and it was only for that reason that the adminis-terial act of docketing had not taken place [prior to the filing of Cayce’s motion].” J.A. 179. Both the District Court’s oral acceptance and its endorsement of the transcript occurred prior to Cayce’s request to withdraw his plea, and for that reason, Rule 11(d)(1) is inapplicable to his motion.

[26]*26Pursuant to Rule 11(d)(2)(B), “[a] defendant may withdraw a plea of guilty ... after the court accepts the plea ... [if] the defendant can show a fair and just reason for requesting the withdrawal.” The District Court determined that Cayce failed to make that showing, and it therefore denied his motion to withdraw the plea. This Court reviews that decision for abuse of discretion. See e.g., United States v. Doe, 537 F.3d 204, 211 (2d Cir.2008). Among the factors that a district court must weigh when deciding whether a defendant has shown a “fair and just reason” for withdrawal of his guilty plea are “(1) the amount of time that has elapsed between the plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea.” Doe, 537 F.3d at 210; see also United States v. Rosen, 409 F.3d 535, 546 (2d Cir.2005) (listing same factors); United States v. Couto,

Related

United States v. Jerome E. Rosen
409 F.3d 535 (Second Circuit, 2005)
United States v. Anthony Phillips
431 F.3d 86 (Second Circuit, 2005)
United States v. Brumer
528 F.3d 157 (Second Circuit, 2008)
United States v. Doe
537 F.3d 204 (Second Circuit, 2008)
Minetti v. Port of Seattle
152 F.3d 1113 (Ninth Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
319 F. App'x 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cayce-ca2-2009.