United States v. Ray

• Court: Court of Appeals for the Second Circuit
• Decided: May 16, 2025
• Docket: 23-8005
• Status: Unpublished

Opinion

23-8005-cr United States v. Ray

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 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 16th day of May, two thousand twenty-five.

PRESENT: GERARD E. LYNCH, JOSEPH F. BIANCO, STEVEN J. MENASHI, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-8005-cr

FRANKLIN RAY,

Defendant-Appellant,

JOSEPH WINGET,

Defendant. ∗ _____________________________________

FOR APPELLEE: MATTHEW WEINBERG, Assistant United States Attorney (Andrew Rohrbach, Assistant United States Attorney, on the brief), for Danielle R.

∗ The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. Sassoon, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT-APPELLANT: BENJAMIN SILVERMAN, Law Offices of Benjamin Silverman PLLC, New York, New York.

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

New York (Analisa Torres, Judge).

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

DECREED that the judgment of the district court, entered on November 28, 2023, is

AFFIRMED.

Defendant-Appellant Franklin Ray appeals from the district court’s judgment of conviction

following his guilty plea, pursuant to a plea agreement, to five charges in a superseding

information. Ray was charged with one count of wire fraud and committing an offense while on

release in a pending criminal case, in violation of 18 U.S.C. §§ 1343, 3147 (“Count One”); three

counts of wire fraud, in violation of 18 U.S.C. § 1343 (“Counts Two, Three, and Four”); and one

count of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1), (b) (“Count Five”).

We assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal, to which we refer only as necessary to explain our decision to affirm.

The convictions arise from Ray’s participation in fraud schemes, between 2020 and 2022,

in connection with his control of two purported trucking companies, CSA Business Solutions LLC

(“CSA”) and REM Enterprizes Inc. (“REM”). Although Ray exercised actual operational control

over these companies, he was not the legal owner. Ray’s co-defendant, Joseph Winget, was the

legal owner of CSA and an unnamed, uncharged individual (“Individual-1”) was the legal owner

of REM. As relevant to this appeal, Ray used REM to fraudulently obtain funds from the Small

2 Business Administration. This conduct formed the basis for Counts Four and Five. As to Count

Four, Ray engaged in wire fraud by procuring over $800,000 in loans from the Economic Injury

Disaster Loan program and the Paycheck Protection Program through applications that contained,

inter alia, forged bank account statements and false IRS filings. As to Count Five, aggravated

identity theft, Ray—acting alone—used Individual-1’s name, driver’s license, and social security

number on the loan applications that were used to commit the above-referenced wire fraud.

On appeal, Ray challenges his conviction only on Count Five. He argues that, in light of

Dubin v. United States, 599 U.S. 110 (2023), which was decided after he pled guilty but before he

was sentenced, his plea was not knowing and voluntary and lacked a factual basis, in violation of

Federal Rule of Criminal Procedure 11 and the Due Process Clause. In particular, Ray argues that

“[u]nder Dubin, to convict someone under 18 U.S.C. § 1028A, it is not enough to prove that they

used another person’s ‘means of identification’ merely to facilitate a fraudulent scheme,” but rather

the statute “requires that using the other person’s identity be at ‘the crux’ of what makes the fraud

illegal, and itself deceptive.” Appellant’s Br. at 2–3 (quoting Dubin, 599 U.S. at 131–32).

According to Ray, because his use of Individual-1’s identification was not at the crux of what made

his conduct with respect to the loan applications fraudulent, his allocution at the guilty plea

proceeding and the evidence in the record did not provide a sufficient factual basis for an

aggravated identity theft conviction, and the district court could not accept his guilty plea and enter

judgment on Count Five without ensuring that Ray knew the elements of the charge as articulated

in Dubin.

Ray acknowledges that he failed to preserve any Rule 11 error in the district court but urges

us to conclude that the district court committed plain error. The government, however, argues that

3 plain error review is unavailable to Ray because he waived his Dubin argument in the district court

and, thus, he cannot raise that claim on appeal. We agree with the government.

“While we have discretion to consider forfeited arguments, a waived argument may not be

revived.” Doe v. Trump Corp., 6 F.4th 400, 410 n.6 (2d Cir. 2021); see United States v. Yu-Leung,

51 F.3d 1116, 1121 (2d Cir. 1995) (“[F]orfeiture does not preclude appellate consideration of a

claim in the presence of plain error, whereas waiver necessarily extinguishes the claim altogether.”

(internal quotation marks and citation omitted)). “Forfeiture occurs when a defendant, in most

instances due to mistake or oversight, fails to assert an objection in the district court.” United

States v. Spruill, 808 F.3d 585, 596 (2d Cir. 2015). Waiver, on the other hand, occurs when there

has been an “intentional relinquishment or abandonment of a known right.” United States v. Olano,

507 U.S. 725, 733 (1993) (internal quotation marks and citations omitted); see Berghuis v.

Thompkins, 560 U.S. 370, 382 (2010) (describing waiver as a “voluntary” and “aware[]” decision).

“We will infer a waiver only where the parties were aware of their rights and made the conscious

choice, for whatever reason, to waive them.” U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc.,

775 F.3d 128, 136 (2d Cir. 2014) (internal quotation marks and citation omitted). “We have

identified waiver where a party asserts, but subsequently withdraws, an objection in the district

court.” Spruill, 808 F.3d at 597. “We have also recognized waiver where a party makes a tactical

decision not to raise an objection.” Id. (internal quotation marks and citation omitted).

The circumstances here demonstrate that Ray acted intentionally in declining to pursue his

Dubin argument in the district court, which is the sole basis for his Rule 11 challenges on appeal.

In his initial sentencing submission, Ray asked the district court to “consider vacating Mr. Ray’s

conviction on Count 5 in this matter in light of the Supreme Court’s recent decision in Dubin v.

United States.” Joint App’x at 116 (italics added). In that submission, as on appeal, Ray argued

4 that his use of Individual-1’s personal identifying information in the fraudulent loan applications

was not at the crux of what made those applications fraudulent, and therefore, that information was

not used in relation to his wire fraud scheme. However, Ray unequivocally withdrew this argument

six days later. In his supplemental sentencing submission, Ray acknowledged his prior request

that the district court vacate his conviction on Count 5 in light of Dubin and then abandoned it,

stating, “[a]fter discussions with the Government, the Defendant wishes to clarify that we are NOT

moving to withdraw or vacate Mr. Ray’s plea with respect to Count 5, and Mr. Ray maintains his

position that he is guilty of Count 5 as agreed to in the plea agreement.” Id. at 144. Ray’s

“assert[ion], but subsequent[] withdraw[al]” of the Dubin argument before the district court is

sufficient for us to conclude that Ray waived the argument. Spruill, 808 F.3d at 597.

Moreover, the intentional relinquishment of the Dubin argument prior to sentencing was

undoubtedly tactical. As the government notes and Ray does not dispute, “[h]ad Ray obtained

vacatur of the conviction on Count Five, . . . he would have been in breach of his plea agreement,

and the Government could have reinstated the original indictment.” Appellee’s Br. at 16. That

indictment contained another aggravated identity theft charge. If Ray’s Dubin challenge were

unsuccessful and he were convicted of both counts, the district court, in its discretion, could impose

consecutive 24-month sentences on each count. 18 U.S.C. § 1028A(b)(4). Ray thus opted to end

his effort to seek vacatur of Count Five in light of Dubin, which would have resulted in his need

to negotiate a new plea or proceed to trial on the remaining counts in the indictment, even if his

challenge to Count Five (and the second aggravated identity theft count) was ultimately successful.

He instead decided to proceed to sentencing, which resulted in him receiving a sentence at the

bottom of the Guidelines range calculated by the plea agreement.

5 Under these circumstances, Ray made a “tactical decision” and “acted intentionally in

pursuing, [and then] not pursuing” a vacatur of Count Five under Dubin. Spruill, 808 F.3d at 597.

Ray’s intentional choice not to pursue a Dubin argument at sentencing constitutes waiver, and this

“waiver applies with even more force when, as in this case, [Ray] not only failed to object to what

[he] now describe[s] as error, but [he] actively solicited it, in order to procure a perceived

sentencing benefit.” United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007); see also United

States v. Wells, 519 U.S. 482, 488 (1997) (“[A] party may not complain on appeal of errors that he

himself invited or provoked the district court to commit.” (alterations adopted) (internal quotation

marks and citation omitted)); United States v. Madrid, No. 23-6770, 2025 WL 547665, at *2

(2d Cir. Feb. 19, 2025) (summary order) (finding waiver of ineffective assistance claim on appeal

because “[b]y persisting in their guilty pleas despite having raised ineffective assistance claims

against their prior counsel, [the defendants] made a deliberate choice to abandon those claims”);

United States v. Martin, No. 23-6091, 2024 WL 5001844, at *2 (2d Cir. Dec. 6, 2024) (finding

waiver of an appellate argument that the defendant’s plea was involuntary where the defendant had

“affirmatively informed the [district c]ourt, through [a letter from] new counsel, that he did not

wish to withdraw his plea”), cert. denied, No. 24-6753, 2025 WL 1020425 (Apr. 7, 2025). In sum,

as to the Rule 11 challenges raised by Ray, which are the only grounds for appeal and are all based

on Dubin, we conclude that review is unavailable.

Ray’s arguments to the contrary are unavailing. For instance, to the extent Ray argues that

“any waiver of the rights raised in this appeal [is] unenforceable as a policy matter” because waiver

would result in Ray’s “convict[ion] of a crime that he did not commit,” we disagree. Appellant’s

Br. at 36–37. As set forth above, prior to sentencing, Ray understood, and indeed initially pressed,

his right to challenge his guilty plea to Count Five under Dubin. And yet he nevertheless explicitly

6 withdrew that challenge for his own strategic benefit and reasserted “his position that he is guilty

of Count 5 as agreed to in the plea agreement.” App’x at 144. Thus, even assuming that there may

be a limited class of cases where enforcing a waiver may be a miscarriage of justice or could

“irreparably discredit the federal courts,” United States v. Mezzanatto, 513 U.S. 196, 204 (1995)

(internal quotation marks, citation, and alteration omitted), this is not one of them. See Cook v.

United States, 84 F.4th 118, 125 n.4 (2d Cir. 2023) (“This case does not require us to decide

whether a collateral-attack waiver would be unenforceable in the event of a complete miscarriage

of justice.” (internal quotation marks and citation omitted)).

We are similarly unpersuaded by Ray’s contention that his counsel’s waiver of his Dubin

argument is invalid because this type of action required a personal waiver from Ray, rather than a

waiver through counsel, and because his counsel effectuated the waiver without his knowledge or

consent. To be sure, “[f]or certain fundamental rights, the defendant must personally make an

informed waiver,” but for others, “waiver may be effected by action of counsel.” New York v. Hill,

528 U.S. 110, 114 (2000). Here, the decision as to whether or not to pursue a legal challenge to a

guilty plea prior to sentencing based upon intervening case authority falls comfortably within the

“strategic and tactical matters” that can be waived through counsel. United States v. Plitman, 194

F.3d 59, 63 (2d Cir. 1999); see Spruill, 808 F.3d at 597 n.8 (“[M]ost waivers are effected through

counsel.”). In fact, we have previously found waiver based on a filing made by a defendant’s

counsel before sentencing purporting to withdraw the defendants’ challenge to his guilty plea. See

Martin, 2024 WL 5001844, at *2.

Finally, to the extent Ray argues his counsel withdrew the Dubin argument without his

consent, Ray “may have a Sixth Amendment claim for ineffective representation,” which he can

pursue in a petition under 28 U.S.C. § 2255. Spruill, 808 F.3d at 597 n.8. But his counsel’s actions

7 are “no less a ‘true waiver,’ merely because [Ray] may subsequently claim ineffective assistance

of counsel.” Id. at 600.

* * *

We have considered Ray’s remaining arguments and conclude that they are without merit.

Accordingly, the judgment of the district court is AFFIRMED.

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