Petition for Writ of Certiorari — Nicholas Pagliuca, Petitioner v. United States

APPENDIX

Case 18-1421, Document 53-1, 04/16/2019, 2540700, Page1 of 6

18-1421

United States v. Pagliuca

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 April, two thousand nineteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

JOSÉ A. CABRANES,

SUSAN L. CARNEY,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

v.

No. 18-1421

NICHOLAS PAGLIUCA, AKA Sam Malone,

Defendant-Appellant.

For Defendant-Appellant Nicholas Pagliuca:

Darrell Fields, Appeals Bureau, Federal

Defenders of New York, Inc., New York, NY.

For Appellee United States of America:

Gillian Grossman, Daniel B. Tehrani, for

Geoffrey S. Berman, United States Attorney

for the Southern District of New York, New

York, NY.

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Pet. App. 000001

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

New York (Seibel, J.).

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

DECREED that the appeal is DISMISSED.

Defendant-appellant Nicholas Pagliuca appeals from a sentencing judgment of the United

States District Court for the Southern District of New York (Seibel, J.), which, as relevant here,

requires Pagliuca to pay a $15,000 fine. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

The district court decided to include a fine in Pagliuca’s sentence based in part on its

belief that he would receive Social Security benefits while incarcerated. In fact, federal law

prohibits Social Security recipients from receiving payments for any month in which they are in

prison. See 42 U.S.C. § 402(x)(1)(A)(i). For us to reach Pagliuca’s challenge to the court’s

decision, however, Pagliuca must overcome the plea agreement he signed, which included an

appeal waiver of any fine below $300,000.

Pagliuca argues that the panel should excuse the waiver because the district court failed

to ensure at his plea hearing that Pagliuca understood that he was waiving the right to appeal a

fine. See Fed. R. Crim. P. 11(b)(1)(N). “Waivers of the right to appeal a sentence are

presumptively enforceable.” United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (per

curiam).1 However, courts will not enforce a waiver of appellate rights when the “waiver was not

made knowingly, voluntarily, and competently.” United States v. Gomez-Perez, 215 F.3d 315,

319 (2d Cir. 2000). Such circumstances may exist where there were significant errors in “the

1

Unless otherwise indicated, case quotations omit all internal quotation marks,

alterations, footnotes, and citations.

2

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process leading to the plea,” including failure “to comply with the important strictures of Rule

11, which governs entry of guilty pleas.” United States v. Lloyd, 901 F.3d 111, 118 (2d Cir.

2018). Accordingly, to determine the enforceability of the waiver, we review whether the plea

colloquy with respect to the waiver of appellate rights violated Rule 11 and thereby undermined

the voluntary and knowing nature of Pagliuca’s waiver.

Because Pagliuca did not object below to the alleged Rule 11 violation, our review is for

plain error. Id. at 119. He therefore must “establish (1) error (2) that is plain and (3) affects

substantial rights.” United States v. Zukerman, 897 F.3d 423, 427 (2d Cir. 2018) (per curiam),

cert. denied, No. 18-642, 2019 WL 887697 (U.S. Feb. 25, 2019). If he does, we may “exercise

our discretion to correct [the error] . . . if [it] seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” Id.

Federal Rule of Criminal Procedure 11(b)(1)(N) requires the court to “inform the

defendant of, and determine that the defendant understands, . . . the terms of any plea-agreement

provision waiving the right to appeal or to collaterally attack the sentence.” The district court

may have only partially complied with this mandate. While the district court ensured that

Pagliuca understood that he was giving up his right to appeal his conviction and sentence, the

court did not specifically point out that Pagliuca could only appeal a fine of more than $300,000.

Arguably, then, the court may not have “verif[ied] that [Pagliuca] understood the breadth of the

waiver.” United States v. Goodson, 544 F.3d 529, 540 (3d Cir. 2008).

We need not decide whether this plea colloquy violated Rule 11, however, because any

such error did not affect Pagliuca’s substantial rights. This Court has repeatedly stated that “[i]n

the Rule 11 context,” the substantial rights prong “require[s] that a defendant show a reasonable

probability that, but for the error, he would not have entered the plea.” Lloyd, 901 F.3d at 119.

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This standard derives from the Supreme Court’s decision in United States v. Dominguez Benitez,

in which the defendant sought to withdraw his guilty plea because the district court failed to

provide a certain Rule 11 warning. 542 U.S. 74, 76 (2004). The Court held “that a defendant who

seeks reversal of his conviction after a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show a reasonable probability that, but for the error, he would

not have entered the plea.” Id. at 83.

Pagliuca argues that this standard is the wrong one to apply in the appellate waiver

context when a defendant seeks only to vacate his sentence, not to appeal or otherwise attack his

underlying conviction. He stresses that several circuits have declined to extend the substantial

rights formulation of Dominguez Benitez to such cases. See United States v. Corso, 549 F.3d 921,

929 (3d Cir. 2008); United States v. Murdock, 398 F.3d 491, 496-97 (6th Cir. 2005); United

States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004); see also United States v.

Villodas-Rosario, 901 F.3d 10, 15-16 (1st Cir. 2018) (suggesting, without deciding, that circuit

precedent focused on whether “the record as a whole revealed that the defendant understood the

waiver at the time he entered the plea”—“and not the plain-error standard articulated in

Dominguez Benitez”—“should remain the standard used to assess the enforceability of appellate

waivers” generally). These circuits have instead asked whether “the Rule 11 error precluded [a

defendant] from understanding that he had a right to appeal and that he had substantially agreed

to give up that right.” Corso, 549 F.3d at 929; accord Arellano-Gallegos, 387 F.3d at 797; see

Murdock, 398 F.3d at 497 (asking whether there was a “functional substitute” for the Rule

11(b)(1)(N) inquiry).2

2

There is a circuit split on this question: several of our sister circuits have applied

Dominguez Benitez to Rule 11 errors when defendants have attacked appellate waivers that bar

their sentencing appeals. See United States v. Crain, 877 F.3d 637, 639, 643-45 (5th Cir. 2017);

4

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This Court has applied Dominguez Benitez in several cases in which defendants sought to

void appellate waivers to attack elements of their sentences. See Burden, 860 F.3d at 52-53;

Tellado, 745 F.3d at 54-55; United States v. Cook, 722 F.3d 477, 482-83 (2d Cir. 2013). Pagliuca

discusses only Cook. He urges the panel not to treat Cook as binding, since its discussion of

substantial rights furnished merely “a second, alternative reason” for upholding the appellate

waiver after determining that there was no error. 722 F.3d at 482. Pagliuca argues that the

discussion was therefore dictum and need not be followed.3 We need not address this argument

because, even under Pagliuca’s proposed standard, he has not established a reasonable

probability that the court’s Rule 11 error prevented him from understanding that he had a right to

appeal his fine and was giving it up. See Corso, 549 F.3d at 929.

“In assessing the likely effect of a Rule 11 error, we are to examine the entire record.”

United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). Several points in the record give us

confidence that Pagliuca knew he was giving up his right to appeal his fine.

To begin with, he signed a plea agreement in which he agreed to give up the right to

appeal any fine below $300,000, and he did so on the date of his plea hearing. The agreement is

not enough on its own to replace a Rule 11 inquiry, see Corso, 549 F.3d at 930; Murdock, 398

F.3d at 498, but there is more in this case. At the plea hearing, the district court ensured that

Pagliuca knew that he faced a statutory maximum fine of $250,000. It confirmed that Pagliuca

United States v. Tanner, 721 F.3d 1231, 1235-36 (10th Cir. 2013) (per curiam); cf. United States

v. Sura, 511 F.3d 654, 662 (7th Cir. 2007) (applying functional substitute test as a subset of the

Dominguez Benitez standard to sentencing appeal).

3

Tellado, too, addressed substantial rights only after determining that there was no plain

error. 745 F.3d at 53-55. Pagliuca’s argument cannot extend to Burden, in which the substantial

rights analysis provided the sole basis for decision. 860 F.3d at 52-53. However, Burden had an

unusual procedural background. First, it dealt with a stipulation resolving two defendants’ habeas

petitions, rather than a plea agreement in a criminal case proper. Id. Second, the defendants

claimed that the failure to explain a substantive term of resentencing—rather than failure to

explain the appellate waiver itself—voided the appellate waiver in that stipulation. Id. at 52.

5

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had read his plea agreement before signing it, that he had discussed “everything in it” with his

attorney, and that he fully understood it. App. at 39. Pagliuca’s attorney likewise stated under

questioning that she believed Pagliuca fully understood the agreement. Id. at 39-40. Finally, the

court did ask Pagliuca if he understood his appellate waiver, even if the court described the

waiver as covering challenges to his “conviction and sentence” rather than referring to specific

sentencing elements. Id. at 41. These factors, in combination, persuade us that Pagliuca had an

adequate substitute for the proper Rule 11 inquiry. Because the district court’s Rule 11 error did

not affect Pagliuca’s substantial rights, Pagliuca’s appellate waiver remains valid and bars his

appeal.

For the reasons stated herein, the appeal in this case is DISMISSED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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Pet. App. 000006