Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.
Even assuming that counsel erred in telling him that he faced a range of 27 to 33 months (rather than a slightly lower range), Viles cannot show that he would not have pled guilty had he known of the “correct” range. This is so, the Court explained, because there is “at most  six months between the range contained in the plea agreement” and the allegedly correct, lower range. Order at 4. In addition, the district court told Viles at the Rule 11 proceeding that the Guidelines range in the plea agreement did not bind the court and that the court could sentence him up to the statutory maximum (of 20 years, for mail fraud). Id.
Because “Viles provides no reason as to why he would have made a different choice when faced with a plea agreement stipulating a lower guideline range,” he cannot “affirmatively prove prejudice” as required by Strickland. Id. at 3.