08-5316-cr
United States v. Marant

                            UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE PAPER IN WHICH
THE SUM M ARY ORDER IS CITED UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYM ENT OF FEE (SUCH
AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/). IF NO COPY IS SERVED BY REASON
OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE ORDER
WAS ENTERED.

        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 15th day of December, two thousand nine.

PRESENT:
            PIERRE N. LEVAL,
            PETER W. HALL,
                        Circuit Judges,
            J. GARVAN MURTHA,*
                        District Judge.
______________________________________________

UNITED STATES OF AMERICA,
                                      Appellee,

                       v.                                           No. 08-5316-cr

CHARLENE MARANT,
                              Defendant-Appellant.
______________________________________________


       *
        The Honorable J. Garvan Murtha, Senior District Judge of the United States District
Court for the District of Vermont, sitting by designation.

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FOR APPELLEE:                                 PREET BHARARA, United States Attorney for the
                                              Southern District of New York (William J.
                                              Harrington, Jennifer G. Rodgers, Assistant United
                                              States Attorneys, Of Counsel, on the brief).

FOR DEFENDANT-APPELLANT:                      CHARLES F. WILLSON, Nevins & Nevins LLP,
                                              East Hartford, CT.

       Appeal from an Order of the United States District Court for the Southern District of New

York (Baer, J.) denying defendant-Appellant’s motion to continue a sentencing hearing.

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED, that the Order of the district court is AFFIRMED.

       Defendant-Appellant Charlene Marant (“Ms. Marant”) claims that the district court

abused its discretion in denying her request for a two-week continuance of her sentencing

hearing. We assume the parties’ familiarity with the facts, procedural context, and specification

of appellate issues.

       We review a district court’s denial of a sentencing postponement for abuse of discretion.

United States v. Doe, 239 F.3d 473, 475 (2d Cir. 2001). “And even within this regime, we apply

a particularly deferential standard of review. ‘A sentencing court has broad discretion respecting

the scheduling of sentencing proceedings. Absent a showing both that the denial was arbitrary

and that it substantially impaired the defendant’s opportunity to secure a fair sentence, we will

not vacate a sentence because a continuance was denied.’” Id. (quoting United States v. Prescott,

920 F.2d 139, 146-47 (2d Cir. 1990)). The law of this Circuit thus mandates that there be both

arbitrariness and substantial prejudice. Additionally, we have made clear that although the

Federal Rules of Criminal Procedure provide that a defendant may move to withdraw a guilty

plea upon a showing of any “fair and just reason,” Fed. R. Crim. P. 11(d)(2)(B), it is basic that


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“[a] defendant has no absolute right to withdraw his plea of guilty.” United States v. Rosen, 409

F.3d 535, 545 (2d Cir. 2005) (quotation marks omitted). We review a district court’s denial of a

motion to withdraw a guilty plea for abuse of discretion. United States v. Carreto, 583 F.3d 152,

157 (2d Cir. 2009).

       After careful review of Ms. Marant’s arguments and the appellate record, we hold that

there is no basis to find that the district court exceeded the bounds of its discretion in denying

Ms. Marant’s request for a continuance of her sentencing proceeding. First, there is nothing in

the record that convinces this Court that the district court’s decision was arbitrary. On the

contrary, the court was permitted to consider that Ms. Marant had five months between entering

her guilty plea and the sentencing hearing in which to move to withdraw her plea. It was not

arbitrary for the court to reject her request for a continuance when she decided to withdraw her

plea on the eve of her sentencing. See, e.g., United States v. Alexander, 860 F.2d 508, 512 (2d

Cir. 1988) (finding no arbitrariness when district court denied request for more time to respond

because, inter alia, the request occurred just one day before the hearing).

       Furthermore, the court did not exceed its discretion to the extent it placed Ms. Marant’s

request within the context of the competency hearing in which the court credited the Government

doctor’s conclusions that Ms. Marant was malingering and exaggerating her conditions. See,

e.g., United States v. Carroll, 510 F.2d 507, 510 & n.2 (2d Cir. 1975) (holding that it would have

been “quite reasonable” for the lower court to have denied a last-minute request for change of

counsel because defendant had earlier caused a postponement of his trial by feigning psychiatric

symptoms).




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       Next, regarding the obligation to show substantial prejudice, Ms. Marant argues that she

was prejudiced by not being allowed to withdraw her guilty plea and because she was not able to

supplement the record with information that may have led to a more lenient sentence. She is not

able to meet her burden under either argument. Regarding her guilty plea, we have stated that to

determine whether a defendant has met her burden of demonstrating a “fair and just reason” for

withdrawing a plea, a district court should consider: “(1) whether the defendant has asserted his

or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has

elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal

would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of

the plea.” Carreto, 583 F.3d at 157 (quotation marks omitted). The lower court can also rely on

a defendant’s in-court sworn statements that she “understood the consequences of [her] plea, had

discussed the plea with [her] attorney, [and] knew that [she] could not withdraw the plea.” Id.

(quotation marks omitted). In this case, Ms. Marant nowhere asserted her innocence, and the

district court conducted a thorough plea colloquy during which Ms. Marant repeatedly said she

knew that she was guilty and that the plea was knowing and voluntary. The district court was

entitled to rely on these statements in exercising its discretion. Id. That exercise was further

informed by its consideration of Ms. Marant’s counsel’s responses during the sentencing hearing

as to whether the potential motion to withdraw the plea would have any merit.

       Additionally, as noted above, almost five months had elapsed between the plea (May 23,

2008) and the sentencing hearing (October 20, 2008). This is sufficient time to make the

determination that she wanted to withdraw her plea. See United States v. Grimes, 225 F.3d 254,

259 (2d Cir. 2000) (finding no abuse of discretion in denying the defendant’s motion to withdraw


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his guilty plea where the defendant waited “almost five months” before indicating that he wished

to do so). Regarding prejudice to the Government, we have held that since the burden is on the

defendant to demonstrate valid grounds for withdrawal, where the defendant has not shown valid

grounds for withdrawal, the Government is not required to show prejudice. See United States v.

Gonzales, 970 F.2d 1095, 1100 (2d Cir. 1992). Ms. Marant has not shown valid grounds here.

       Finally, Ms. Marant has not pointed to anything in the appellate record suggesting that her

sentence would have been more lenient had she been allowed to adjourn the sentencing

proceedings. The role of the Court of Appeals is limited to examining a sentence for

reasonableness, which is akin to review under an abuse of discretion standard. See Gall v. United

States, 552 U.S. 38, 41 (2007) (holding that “courts of appeals must review all

sentences—whether inside, just outside, or significantly outside the Guidelines range—under a

deferential abuse-of-discretion standard”). This standard applies “both to the [substantive

reasonableness of the] sentence itself and to the procedures employed in arriving at the

sentence.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal quotation

marks omitted). Although Ms. Marant makes vague assertions in her brief that suggest that her

former attorneys did not submit helpful information for the presentence report, these assertions

were not clearly articulated, and the district court is entitled to deference regarding the

procedures employed in arriving at the sentence.

       Accordingly, the order of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk


                                                       By:________________________


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