15-2188-cr
United States v. Richards


15-2188-cr
United States v. Richards

                                   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 12th day of July, two thousand sixteen.

PRESENT:               JOSÉ A. CABRANES,
                       CHRISTOPHER F. DRONEY,
                                    Circuit Judges,
                       JEFFREY ALKER MEYER,
                                    District Judge.*


UNITED STATES OF AMERICA,

                              Appellee,

                              v.                               No. 15-2188-cr

IRA RICHARDS, ALSO KNOWN AS IRA RICHARD, ALSO
KNOWN AS MR. 95, ALSO KNOWN AS SHYNE, ALSO
KNOWN AS SEALED DEFENDANT 1, ALSO KNOWN AS
IRA RICHERDS, ALSO KNOWN AS SHYNE JONES,

                              Defendant-Appellant.


FOR THE UNITED STATES OF AMERICA:                          SAMSON ENZER (Anna M. Skotko, on the
                                                           brief), Assistant United States Attorneys,


     *
    The Honorable Jeffrey Alker Meyer of the United States District Court for the District of
Connecticut, sitting by designation.

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15-2188-cr
United States v. Richards


                                                             for Preet Bharara, United States Attorney
                                                             for the Southern District of New York,
                                                             New York, NY.

FOR DEFENDANT-APPELLANT:                                     ALLEGRA GLASHAUSSER, Of Counsel,
                                                             Appeals Bureau, Federal Defenders of
                                                             New York, Inc., New York, NY.

       Appeal from the June 24, 2015 judgment of the United States District Court for the
Southern District of New York (Lewis A. Kaplan, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Ira Richards appeals from the District Court’s June 24, 2015 judgment
of conviction, which followed his guilty plea before a magistrate judge. Richards argues that his plea
should be vacated because the magistrate judge failed to warn him that it could result in his
deportation from the United States. According to Richards, the magistrate judge’s failure to do so
violated his rights under Rule 11 of the Federal Rules of Criminal Procedure and the Due Process
Clause of the Fifth Amendment.1 Although we agree that the plea colloquy did not comply with
Rule 11, we conclude that Richards cannot show that any error under Rule 11 or the Due Process
Clause affected his substantial rights, and we therefore affirm the judgment of the District Court.

         “[T]he Supreme Court has held that” where, as here, “a defendant has failed to object in the
district court to a violation of Rule 11, reversal is appropriate only where the error is plain and
affects the defendant’s substantial rights.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016)
(citing United States v. Vonn, 535 U.S. 55, 58–59 (2002)); see Def.’s Br. 3 (“[T]his Court should review
for plain error.”). To satisfy this standard, Richards must “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 or public reputation of judicial proceedings.” Pattee, 820 F.3d
at 505 (internal quotation marks omitted).

         With respect to the third prong, Richards “must show that there is a reasonable probability
that, but for the error, he would not have entered the plea. If the misinformation in all likelihood
would not have affected [his] decision-making calculus, then the error would be harmless, and the
guilty plea need not be vacated.” Id. (citations and internal quotation marks omitted). Importantly,



     1
     Rule 11(b)(1)(O) provides that, “[b]efore the court accepts a plea of guilty . . . , [it] must inform
the defendant of, and determine that the defendant understands . . . that, if convicted, a defendant
who is not a United States citizen may be removed from the United States, denied citizenship, and
denied admission to the United States in the future.” Fed. R. Crim. P. 11(b)(1)(O).

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15-2188-cr
United States v. Richards


“[w]here a defendant, before sentencing, learns of information erroneously omitted in violation of
Rule 11 but fails to attempt to withdraw his plea based on that violation, there can be no reasonable
probability that, but for the Rule 11 violation, he would not have entered the plea, and the plain
error standard is not met.” United States v. Tulsiram, 815 F.3d 114, 120 (2d Cir. 2016) (internal
quotation marks omitted).

         Richards cannot make the showing required by the third prong here, because he learned of
the erroneously omitted information before sentencing but did not seek the withdrawal of his plea
on that ground. As the presentence report prepared by the United States Probation Office clearly
stated, “Although Richards claims to have derived U.S. citizenship through his father, a U.S. citizen,
available immigration records indicate that he is a permanent resident. The records also note that as
a result of his conviction in this offense, [he] may face deportation proceedings in the future.”
PSR ¶ 68; see id. at 23 (same). At sentencing, Richards’s counsel acknowledged that Richards had
read the presentence report. A-72. What is more, Richards’s counsel relied on the possibility that
Richards might be deported in arguing for a below-Guidelines sentence. As Richards’s counsel wrote
in his sentencing submission, “No amount of imprisonment above 120 months will meaningfully
contribute to true public safety. Indeed, if the probation department is correct, then [Richards] will
be deported at the conclusion of his incarceration term.” A-62.

         Although Richards is unable to show prejudice from the error that occurred in his plea
proceedings, it is clear that the type of error in this case may be easily avoided by means of strict
adherence to the requirements for guilty plea proceedings that are set forth in Rule 11. As we have
recently observed, “compliance with Rule 11 is not a difficult task,” and “[t]echnical errors can be
avoided if a district or magistrate judge has a standard script for accepting guilty pleas, which covers
all of the required information.” Pattee, 820 F.3d at 503. Because it is possible that a district or
magistrate judge may inadvertently omit an advisory that is required under Rule 11, the best practice
is for counsel to maintain a checklist or similar tracking procedure in order to detect any
shortcoming, and to call any possible deficiency to the attention of the judge at the time of the plea
proceeding. See id. at 504 (noting that “[p]rosecutors and defense attorneys also have an obligation to
make sure that the Rule is followed”).

         We note as well an additional error that occurred during the course of the sentencing
proceeding but that does not furnish a ground for relief in this case, because it was neither raised by
Richards on appeal, nor adopted and pressed by his appellate counsel when raised by this Court sua
sponte at oral argument. The District Court at sentencing asked defense counsel if “you and Mr.
Richards had the presentence report for the necessary period and have both read it,” to which
defense counsel replied, “Yes, sir.” A-72. This query was not sufficient. Rule 32 of the Federal Rules
of Criminal Procedure requires that a district court “must verify that the defendant and the
defendant’s attorney have read and discussed the presentence report and any addendum to the report.”
Fed. R. Crim. P. 32(i)(1)(A) (emphasis supplied). Here, the District Court at sentencing did not


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United States v. Richards


inquire whether counsel had discussed the presentence report with Richards prior to the sentencing.
See United States v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013) (noting “the better practice for trial
courts to address the defendant directly in order to establish that he or she has had the opportunity
to read the PSR and to discuss it with his/her counsel” (alterations omitted)).

        Because Richards cannot show that any error that occurred at his guilty plea or sentencing
proceeding affected his substantial rights, he cannot show plain error.2 And because he cannot show
plain error, we affirm.3

                                            CONCLUSION

        We have considered all of Richards’s arguments on appeal and found them to be without
merit. Accordingly, the judgment of the District Court is AFFIRMED.



                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




     2
     We note that the magistrate judge’s omission of the information required by Rule 11(b)(1)(O),
while undoubtedly erroneous, is perhaps more understandable in this context than it would be in
many others. During Richards’s plea allocution, the magistrate judge asked him, “Are you a United
States citizen?” Richards responded, “Yes.” A-28.
     3
      Richards’s due-process claim fails for the same reason as does his Rule 11 claim—his inability
to satisfy the third prong of the plain-error standard. See Def.’s Br. 23 (“[T]his Court reviews . . . the
due process errors under plain error review.”).

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