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United States of America v. Prezidor Porbeni

November 2, 2010



USA v. Porbeni


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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 2nd day of November, two thousand ten.

PRESENT: DEBRA ANN LIVINGSTON 6 DENNY CHIN, 7 Circuit Judges, 8 DAVID G. LARIMER, 9 District Judge.*fn1


Defendant-Appellant Tare Porbeni ("Porbeni") appeals from an October 15, 2009 judgment of the United States District Court for the Southern District of New York (Daniels, J.), convicting 5 her, upon her guilty plea, of one count of conspiring to make false statements in loan applications 6 and to commit identity theft, in violation of 18 U.S.C. § 371, three counts of making false statements 7 in a loan application, in violation of 18 U.S.C. § 1014, and three counts of transferring, possessing, 8 and using a means of identification of another person with the intent to commit unlawful activity, 9 in violation of 18 U.S.C. § 1028(a)(7) and (c)(3), and sentencing her to five months' imprisonment, 10 followed by three years' supervised release, five months of which were to be served on home 11 confinement, as well as forfeiture of $7,500, restitution of $39,500, and a $700 special assessment.

12 We assume the parties' familiarity with the underlying facts and procedural history of the case. 13 Porbeni's sole argument on appeal is that the district court erred in failing to advise her on 14 the record at her guilty plea allocution that she was subject to a restitution penalty. See Fed. R. 15 Crim. P. 11(b)(1)(K) (requiring a district court to "inform the defendant of, and determine that the 16 defendant understands, . . . the court's authority to order restitution"). Porbeni argues that, since she 17 was not advised of the potential for restitution by the district court during the plea colloquy, her 18 restitution order should be vacated or, in the alternative, she should be permitted to withdraw her 19 guilty plea. As Porbeni concedes, however, neither she nor her trial counsel objected to the 20 Probation Department's recommendation of restitution in the presentence report or to the imposition 21 of restitution at the time of sentencing. Accordingly, we review Porbeni's challenge to the 22 restitution order for plain error, and find none. See United States v. Flaharty, 295 F.3d 182, 195 (2d 23 Cir. 2002) (explaining that plain error review requires a defendant to demonstrate, inter alia, "that 24 (1) there was error, (2) the error was 'plain,' [and] (3) the error prejudicially affected his 'substantial 1 rights'" (quoting United States v. Olano, 507 U.S. 725, 732 (1993))).

2 As an initial matter, there is no dispute that the district court was statutorily empowered to 3 order the restitution at issue. Although the district court did not inform Porbeni about the restitution 4 penalty prior to accepting her plea, Porbeni must, in order to demonstrate plain error, show "a 5 reasonable probability that, but for the error, [s]he would not have entered the plea." United States 6 v. Dominguez Benitez, 542 U.S. 74, 83 (2004); accord United States v. Vaval, 404 F.3d 144, 151 & 7 n.3 (2d Cir. 2005). Porbeni has failed to satisfy this burden. First, contrary to her assertion on 8 appeal, Porbeni's plea agreement did, in fact, inform her of the district court's duty to order 9 restitution. The Probation Department's presentence report, moreover, recommended that Porbeni 10 be required to pay restitution in the amount of $39,500, as required under 18 U.S.C. §§ 3663A and 11 3664. Prior to sentencing, Porbeni's counsel confirmed that she had reviewed the presentence report 12 with Porbeni, and that there were no objections. Finally, the district court informed Porbeni that her 13 guilty plea would subject her to a potential fine of up to $4,000,000. Cf. Vaval, 404 F.3d at 152.

14 When a defendant, prior to sentencing, "learns of information erroneously omitted in violation of 15 Rule 11 but fails to attempt to withdraw h[er] plea based on that violation, there can be no 16 reasonable probability that, but for the [Rule 11 violation], [s]he would not have entered the plea." 17 Id. (second alteration in original) (internal quotation marks omitted). Accordingly, in light of the 18 record before us, we cannot conclude that there is a reasonable probability that Porbeni would not 19 have pleaded guilty if the district court had informed her about the restitution penalty prior to 20 accepting her plea. We have considered all of Porbeni's remaining arguments and find them to 21 be without merit. For the foregoing reasons, the judgment of the district court is hereby 22 AFFIRMED.


Catherine O'Hagan ...

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