#### UNITED STATES of America, Appellee, v. Hugnel ANDRE, AKA Hugz, Defendant Courtney Melville, AKA Trix, Defendant-Appellant

15-2019

United States Court of Appeals, Second Circuit.

December 20, 2016

FOR APPELLANT: ANTHONY L. RICCO, New York, New York (Steven Legón, on the brief).

FOR APPELLEE: JO ANN M. NAV-ICKAS, for Robert L. Capers, United States Attorney for the Eastern District of New York (Kevin Trowel, on the brief).

PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, BARRINGTON D. PARKER, Circuit Judges,

SUMMARY ORDER

Courtney Melville appeals from the judgment of the United States District Court for the Eastern District of New York (Ross, J.) denying' his motion to withdraw his guilty plea to an 18 U.S.C. § 924(c) count and sentencing him to 108 months of imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm because Melville’s plea allocution was sufficient to establish aiding and abetting liability for the § 924(e) count and because a waiver bars his appeal of the sentence.

Melville pleaded guilty to one count of Hobbs Act robbery and one count of using or carrying a firearm in connection with that robbery. 18 U.S.C. § 1951 (Hobbs Act); 18 U.S.C. § 924(c) (use of a weapon). The § 924(c) count in the indictment charged him both with the substantive offense and with aiding and abetting the offense pursuant to 18 U.S.C. § 2. He was also charged with (but did not plead guilty to) one count of conspiracy to commit the robbery.

After pleading guilty, Melville moved to withdraw his plea to the § 924(c) count, arguing that the facts adduced at the allo-cution were insufficient to establish his guilt. The undisputed facts elicited at Melville’s allocution were: 1) that Melville did not carry a gun on his person in connection with the robbery; and 2) that one of Melville’s fellow robbers did carry a gun in connection with the robbery. Melville argued that he could not be held criminally liable for the use of a gun by one of his fellow robbers under a Pinkerton theory because he had neither pleaded guilty to nor been convicted of a conspiracy charge. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The district court held that he could be *834convicted under Pinkerton despite the lack of a conspiracy conviction or plea. The motion to withdraw the guilty plea was accordingly denied.

Both parties observe that the Pinkerton-question presented is a novel one in the Second Circuit,1 but we need not reach it because we can affirm on simpler grounds. United States v. Cramer, 777 F.3d 597, 603 (2d Cir. 2015) (“[W]e are free to affirm a decision on any grounds supported in the record, even if it is not one on which the trial court relied.”) (citations omitted). Melville pleaded guilty to a § 924(c) count in the indictment that expressly charged him under the aiding and abetting statute, and his allocution established that he met the two requirements for aiding and abetting a § 924(c) violation. First, he took an affirmative act in furtherance of the crime by participating in the robbery itself. Rosemond v. United States, - U.S. -, 134 S.Ct. 1240, 1247, 188 L.Ed.2d 248 (2014) (holding that participation in the underlying crime is sufficient to fulfill the act requirement for aiding and abetting a § 924(c) violation). Second, he had advance knowledge that one his fellow robbers would carry a gun during the robbery. Id. at 1249. Because the plea allocution provided the necessary factual predicate for Melville’s liability, the district court did not err in denying his motion to withdraw the guilty plea. See United States v. Rosen, 409 F.3d 535, 546 (2d Cir. 2005).

Melville also challenges his sentence of 108 months; but his plea agreement waived any right to appeal a sentence of 117 months or less. That waiver is valid and bars his appeal. United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009) (per curiam).

For the foregoing reasons, and finding no merit in Melville’s other arguments, we hereby AFFIRM the judgment of the district court.

1

. The question would seem to be answered in Pacelli v. United States, 588 F.2d 360, 367 (2d Cir. 1978) (“[T]he Pinkerton rationale makes all partners in the enterprise responsible for the acts of the others in carrying it out, *whether a conspiracy is charged or not.")*(emphasis added).