United States v. Delgiudice

SUMMARY ORDER Richard Delgiudice appeals from a judgment of conviction, following a guilty plea to one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Delgiudice argues that the district court violated Federal Rule of Criminal Procedure 11 and that the forfeiture amount is without evidentiary basis. Delgiudice brought neither objection to the attention of the district court and therefore must show plain error. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (discussing Rule 11 error); United States v. Uddin, 551 F.3d 176, 181 (2d Cir.2009) (discussing forfeiture). He does not. Delgiudice argues that the district court violated Rule 11(b)(3) by accepting his plea without a factual basis. To comply with the Rule, the court must “ ‘assure itself simply that the conduct to which the *603 defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.’ ” United States v. Garcia, 587 F.3d 509, 514 (2d Cir.2009) (quoting United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.1997)). “The court may rely on defendant’s own admissions, information from the government, or other information appropriate to the specific case.” United States v. Andrades, 169 F.3d 131, 136 (2d Cir.1999). Delgiudice pled guilty to one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin. The elements of such a conspiracy are “the existence of a conspiracy[,] the defendant’s willful joining it,” United States v. Story, 891 F.2d 988, 992 (2d Cir.1989), and the quantity of narcotics involved, United States v. Gonzalez, 420 F.3d 111, 129 (2d Cir.2005). There must be at least one person in the conspiracy (apart from the defendant) not acting as an agent for the government. United States v. Goldberg, 756 F.2d 949, 958 (2d Cir.1985). Notwithstanding initial confusion in Del-giudice’s allocution as to the date of the conspiracy, the parties provided facts sufficient to substantiate each element of the offense. Delgiudice admitted to entering an agreement with others in July of 2005 to purchase and distribute two kilograms of heroin. Defense counsel clarified that the transaction to which Delgiudice was pleading guilty actually occurred in June of 2005. As the prosecutor explained, Del-giudiee’s co-conspirator was acting as a government agent in July but not in June. Delgiudice then admitted to arranging to purchase and distribute one kilogram of heroin in June. Given these statements, there is no plain error. Based on the street-value of two kilograms of heroin, the court ordered Del-giudice to pay $96,000 in forfeiture. Delgi-udice asserts that there was only eviden-tiary basis for his having possessed and distributed one kilogram of heroin. Delgiudice waived this argument. “[Wjaiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal citations omitted); see also United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009) (finding that the defendant waived his right to appeal when the court presented the defendant with a proposed jury instruction and the defendant agreed that it was satisfactory). When the court indicated that it would order forfeiture of $96,000, defense counsel was told, “[i]f you think that there is something that might demonstrate that I have some authority or basis to order something different, I’ll give you that opportunity.” After conferring with Delgiudice, counsel replied, “[yjour honor, we will accept your judgment on it.” Finding no merit in Delgiudice’s remaining arguments, we hereby AFFIRM the judgment of the district court.