Appeal from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge).
United States v. Rodriguez
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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8th day of November, two thousand twelve.
PRESENT: JOSE A. CABRANES, ROBERT D. SACK, SUSAN L. CARNEY, Circuit Judges.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Following a plea agreement, defendant-appellant Alexis Rodriguez pleaded guilty to (1) conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), and (2) possession of a weapon as a felon in violation of 18 U.S.C. § 922(g)(1). The District Court accepted Rodriguez's plea, finding adequate factual support for both charges, and sentenced Rodriguez to a prison term of 131 months. On appeal, Rodriguez argues that the District Court lacked a sufficient factual basis to accept his guilty plea with respect to both counts, thus violating Rule 11(b)(3) of the Federal Rules of Criminal Procedure. We assume the parties' familiarity with the facts and procedural history of this case, which we briefly summarize below.
In September 2009, the government arrested Rodriguez for being a felon in possession of a weapon. The charge stemmed from his sale of a weapon to a confidential informant in a Home Depot parking lot on April 9, 2009. Rodriguez later admitted that he had also previously conspired to steal cocaine from a drug dealer. Rodriguez cooperated with the government, agreeing in a plea agreement to waive indictment, proceed before a magistrate, and plead guilty to (1) conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), and (2) possession of a weapon as a felon in violation of 18 U.S.C. § 922(g)(1). At a plea colloquy held on October 29, 2009 before Magistrate Judge Robert M. Levy, Rodriguez pleaded guilty to both counts. Testifying under oath, Rodriguez explained the factual basis for both charges.
With regard to the robbery charge, Rodriguez explained at the plea colloquy: "Me and three other guys, we planned to rob a drug dealer [in 2005] and at the time we waited for him at his house [in Queens] and . . . one of the guys had a vest and a badge and a flashlight pretending he was cop." App'x 41. Rodriguez further testified that he and his coconspirators intended to steal cocaine but that they aborted the plan when the drug dealer failed to come home. The government represented that "the intended thing to be stolen was cocaine which arrived in New York . . . obviously from another state." Id. at 43.
With regard to the felon-in-possession charge, Rodriguez testified that he had possessed and sold a P-89 Ruger firearm, along with ammunition, in April 2009. He also testified that he had been convicted of felony rape in the third degree in 2003. The Magistrate Judge asked, "[i]s the government prepared to prove that the gun was in interstate commerce?" App'x 45. The government responded yes.*fn1 Id.
The Magistrate Judge then recommended that the District Judge find that Rodriguez had knowingly and voluntarily pleaded guilty and "that there is a factual basis for the plea, that [Rodriguez] did, in fact, commit the acts that were alleged in the information." App'x 46. This recommendation to accept Rodriguez's plea was adopted by Judge Johnson.
Based on Rodriguez's failure to abide by the terms of the plea agreement, the government successfully moved on April 30, 2010 to terminate the cooperation agreement.*fn2 Prior to sentencing, the District Court ordered that Rodriguez undergo two competency examinations. During those examinations, Rodriguez told the examining forensic psychologist that at his plea colloquy he had fabricated the ...