In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 21-1854 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DARAYL DAVIS, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cr-0025-1 — Robert W. Gettleman, Judge. 

____________________ 

ARGUED JANUARY 6, 2022 — DECIDED MARCH 29, 2022 

____________________ 

Before SYKES, Chief Judge, and ROVNER and SCUDDER,

Circuit Judges. 

ROVNER, Circuit Judge. Darayl Davis created, promoted, 

and operated a complex multi-state scheme to defraud money 

from people who entrusted him to place their funds in safe 

and lucrative investments. Rather than investing the money 

as promised, Davis used it to fund a lavish lifestyle, using the 

money on entertainment, exclusive clubs, lavish vacations, 

mansions, and luxury car rentals. All told, over the course of 
2 No. 21-1854 

about twenty years, his victims lost approximately $5 million. 

As is almost always the case with ponzi schemes and their ilk, 

some victims’ lives were devastated by the loss of funds. And, 

as is also often the result of these schemes, it eventually unraveled and resulted in an indictment. The government 

charged Davis with nine counts of mail and wire fraud (18 

U.S.C. §§ 1341 & 1343), one count of aggravated identity theft 

(18 U.S.C. § 1028A) and six counts of engaging in monetary 

transactions in property derived from unlawful activity (18 

U.S.C. § 1957). R. 45. Davis was released on bond pending a 

spring 2020 trial.1 

As we now know too well, havoc reached the world that 

spring, and the day before Davis’ scheduled pre-trial conference, the district court issued an order creating emergency 

procedures to address health and safety in light of the beginning of the Covid-19 pandemic. The court’s First Amended 

General Order 20-0012 emphasized that the court remained 

open for criminal proceedings that could not be delayed. All 

other non-emergent proceedings, including Davis’ trial, were 

continued until April 6, 2020. When hopes for a short-lived 

pandemic did not come to fruition, on March 30, 2020, the 

court entered a Second Amended General Order 20-0012 postponing plea hearings until after May 4, 2020. The order provided that parties in individual cases could request plea hearings held by video or telephone conference pursuant to the 

2020 Coronavirus Aid, Relief, and Economic Security Act 

(CARES Act), § 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat. 

1 Approximately one month after Davis was released on bond, his bond 

was revoked for violating conditions of release. After spending approximately twenty-two months in custody, he was again released on bond and 

was out on release at the time of the relevant events. 
No. 21-1854 3

281 (2020), which allows for such hearings during the Covid19 pandemic if certain preconditions are met. Throughout the 

relevant time frames the district court continued to issue General Orders with substantially similar provisions. 

Over the next several months, the parties negotiated a plea 

agreement, and the court agreed to exclude that time under 

the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. During a status 

hearing on September 24, 2020, when Davis’ counsel stated 

that the parties would be ready for a change of plea hearing 

in 30-45 days, the court asked if Davis would agree to conduct 

the plea by telephone conference. Davis’ counsel stated “Yes, 

Your Honor, that’s agreeable.” R. 187 at 3–4. Davis, who was 

telephonically present for the hearing did not object. Nor did 

he object when the district court issued the following order: 

The government and the Defendant Darayl Davis have agreed to proceed with a telephoneconference change of plea hearing. 

The Court hereby orders that the change of plea 

hearing set for November 10, 2020 proceed by 

telephone conference. This Order memorializes 

the required findings under the CARES Act 

§ 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat. 

281. 

By order dated June 12, 2020, the Chief Judge 

found that felony pleas and felony sentencings 

cannot be conducted in person in this district 

without seriously jeopardizing public health 

and safety.

Under Section 15002(b)(2)(A), the assigned 

judge finds that further delay of this hearing 
4 No. 21-1854 

would cause serious harm to the interests of justice, because the Defendant wishes to advance 

the case so that he may accelerate the designation to a Bureau of Prisons facility, which offers 

more programming and more expansive inmate 

resources.

R. 143. 

The notification of docket entered in the record that day 

setting the plea hearing date also stated that the hearing 

would be held telephonically. R. 142. The plea hearing was 

reset on several occasions at the request of the parties as they 

continued plea negotiations. Each time the order indicated 

that the hearing would proceed telephonically. R. 144, 145, 

146, 147. Davis never objected to the original minute order or 

any of the four that followed, each of which indicated that the 

hearing would be held by telephone. 

On January 19, 2021, when the parties finally conferenced 

by telephone for the change of plea hearing, Davis was present in his lawyer’s office and greeted the court. R. 184 at 2. 

The district court assured Davis, “[i]f there’s any problem, just 

let us know, and ... we’ll deal with them,” and he reminded 

him “you may consult with your lawyer at any time during 

these proceedings for any reason at all. So if you have any 

questions or concerns or anything like that, just let us know, 

and you and Mr. Cheronis can speak in private.” R. 184 at 3. 

The district court, at the government’s request, also confirmed 

that Davis was agreeing to hold the plea hearing telephonically. 

GOVERNMENT: I might also just ask, I know 

the Court previously entered an order on 
No. 21-1854 5

September 24th authorizing that the previously 

scheduled plea hearing be conducted by telephone but just wanted to confirm that that’s still 

Mr. Davis’s and the parties’ intention and then 

have that order updated for today’s date.

THE COURT: All right. Is that agreeable, Mr. 

Cheronis?

MR. CHERONIS: Yes, Your Honor. We’ve discussed it with Mr. Davis and agree to proceed 

via telephone pursuant to the CARES Act.

THE COURT: Okay. Thank you.

R. 184 at 4. There is no question that the court and government 

went out of their way to make sure that Davis had consented 

to the telephonic hearing, both on September 24, when the 

agreement was made to proceed telephonically, and on January 19, before the hearing began. 

Davis did not have any complaints regarding the telephonic plea hearing that day or at any other time until this 

appeal. Pursuant to his plea agreement with the government, 

Davis pleaded guilty to one count of mail fraud (Count 6) under 18 U.S.C. § 1341. The government agreed to dismiss all of 

the remaining eight counts, and in exchange, Davis signed a 

plea agreement that included a provision in which he waived 

his appellate rights. 

After the court accepted Davis’ plea and entered a finding 

of guilt, the district court judge engaged in a back and forth 

with Davis’ counsel about scheduling the sentencing hearing, 

including a discussion about whether Davis might agree to a 

sentencing hearing by video conference. Davis’ counsel, ruminating on the question stated, “I guess the issue is just 
6 No. 21-1854 

whether or not they’re going to call witnesses. ... To the extent 

that I’d want to cross the witnesses via video, I’d have to think 

about that and talk to my client about it. If there weren’t going 

to be live witnesses, I would certainly be more amenable to 

that.” R. 184 at 27. The district court stated, “[t]he Court will 

consider and set an in-person sentencing, if necessary. Would 

that be agreeable, Mr. Cheronis? And you know, if there’s live 

witnesses, I absolutely agree with you that we’ll have to wait 

until we can do it in person.” Id. at 28. Later, the court then 

reiterated, “And I can just assure Mr. Cheronis this. If I think 

it is necessary for the defense to have in-person proceedings, 

that’s the way we’ll do it.” Id. at 29–30. The court then issued 

an order memorializing what had occurred during the change 

of plea hearing, including the fact that Davis had agreed at 

the outset to holding that hearing by telephone. R. 143. Davis 

did not dispute the order or that he agreed to proceed telephonically. 

During the sentencing hearing, which did indeed proceed 

by videoconference, Davis spoke for himself and stated that 

he understood that he had agreed to sentencing via video conference. R. 168 at 4–5. The district court sentenced Davis to 160 

months imprisonment and a three-year term of supervised release. He was also ordered to pay $7,171,085 in restitution to 

approximately twenty-five victims. Davis now appeals, arguing that the district court erred by holding his plea hearing by 

telephone conference. 

In the course of the lengthy negotiations between Davis 

and the government, Davis signed a plea agreement waiving 

his appellate rights. As an appellate court, we review de novo 

whether a waiver of appellate rights contained in a plea agreement should be enforced. United States v. Brown, 973 F.3d 667, 
No. 21-1854 7

718 (7th Cir. 2020) (multiple denials of cert. omitted from citation). A plea agreement is a contract between the defendant 

and the government, and we interpret it as such, holding all 

parties to their bargain, even if they later have a change of 

mind. Plunkett v. Sproul, 16 F.4th 248, 256 (7th Cir. 2021); 

United States v. Sheth, 924 F.3d 425, 430 (7th Cir. 2019). That 

bargain included Davis’ agreement to waive his appeals in exchange for the government dropping eight of the nine counts 

against him. 

The part of the plea agreement addressing appellate 

waiver stated as follows: 

21. b. Waiver of appellate and collateral 

rights. Defendant further understands he is 

waiving all appellate issues that might have

been available if he had exercised his right to 

trial. Defendant is aware that Title 28, United 

States Code, Section 1291, and Title 18, United 

States Code, Section 3742, afford a defendant 

the right to appeal his conviction and the sentence imposed. Acknowledging this, defendant 

knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any 

part of the sentence (or the manner in which that 

sentence was determined), including any term 

of imprisonment and fine within the maximums 

provided by law, and including any order of 

restitution, in exchange for the concessions 

made by the United States in this Agreement. ... 

22. Defendant understands that by pleading 

guilty he is waiving all the rights set forth in the 

prior paragraphs. Defendant’s attorney has 
8 No. 21-1854 

explained those rights to him, and the consequences of his waiver of those rights. 

R. 149 at 13–14 (emphasis ours). Davis does not dispute that 

he signed the agreement knowingly and voluntarily. 

Of course some rights are not waivable, such as the right 

to effective counsel during a plea negotiation. See Hurlow v. 

United States, 726 F.3d 958, 965 (7th Cir. 2013). It is also true, 

as Davis notes, that our circuit has held in the past that under 

Rule 43 of the Federal Rules of Criminal Procedure, all parties must be present for a defendant’s plea and therefore the 

defendant cannot consent to a plea hearing held by videoconference. United States v. Bethea, 888 F.3d 864, 867 (7th Cir. 

2018). It is undebatable, however, that the CARES Act created an exception to this rule. See United States v. Coffin, 23 

F.4th 778, 781 (7th Cir. 2022). 

The CARES Act allows felony pleas and sentencing to 

proceed by video or telephone conference if the following 

conditions are met: 

if the Judicial Conference of the United States 

finds that emergency conditions due to the national emergency...with respect to the Coronavirus Disease 2019 (COVID–19) will materially 

affect the functioning of either the Federal 

courts generally or a particular district court of 

the United States, the chief judge of a district 

court covered by the finding ... specifically 

finds, ... that felony pleas under Rule 11 of the 

Federal Rules of Criminal Procedure ... cannot 

be conducted in person without seriously jeopardizing public health and safety, and the district 
No. 21-1854 9

judge in a particular case finds for specific reasons 

that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of 

justice, the plea or sentencing in that case may 

be conducted by video teleconference, or by telephone conference if video teleconferencing is 

not reasonably available. 

CARES Act § 15002(b)(2)(A) (emphasis ours).2 The Act also 

requires that the defendant consent to the telephonic or 

video conferencing after consulting with counsel. Id. at (b)(4). 

In other words, the holding in Bethea—that pursuant to 

Rule 43 a defendant cannot waive his right to be present at a 

plea hearing—was revised by the CARES Act. Bethea, 888 F.3d 

at 867. In fact, Bethea itself contemplated that its interpretation 

of the waivability of Rule 43 could be amended by statute, as 

it had been in the past. Id. at 866. The panel in Bethea noted, 

for example, that Rule 43 was amended in 2011 to permit videoconference pleas for misdemeanor offenses, but not felony 

pleas, and it also recommended a future “sensible” amendment “to allow discretion in instances where a defendant 

faces significant health problems.” Id. at 866, 868. The CARES 

Act did just what Bethea predicted—amended Rule 43 to allow 

for video or telephonic conferences in the face of significant 

2 Davis does not contest the use of the telephonic conference as opposed 

to a video conference; thus we ignore that distinction here. He makes only 

a brief mention that “the court made no findings about the availability of 

video conferencing.” Davis Brief at 18–19. This one sentence observation 

without argument is undeveloped and thus waived. Schaefer v. Universal 

Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory 

and undeveloped arguments are waived, as are arguments unsupported 

by legal authority.”).
10 No. 21-1854 

health concerns—although in this case the health concerns 

were global rather than specific to a particular defendant. Just 

as Bethea itself foretold, the holding in Bethea no longer applies 

when Rule 43 has been amended to address just the situation 

before us. In other words, the district court was operating 

pursuant to the requirements and allowances of the CARES 

Act.

Davis concedes, as he must, that the CARES Act allows for 

telephonic hearings and that he consented to such a hearing, 

but argues that his consent was necessary but not sufficient to 

allow the court to proceed by telephone conference. He argues that the court also must have met all of the other prerequisites of the CARES Act, and failed to do so in the case of the 

one requirement that we have italicized above—a finding that

for specific reasons the plea or sentencing in Davis’ case could 

not be further delayed without serious harm to the interests 

of justice. See CARES Act § 15002(b)(2)(A). He argues that the 

CARES Act suspended the requirement for in person proceedings “only in those particular cases where delay is intolerable.” Davis’ Brief at 9 (emphasis in original). And in his 

particular instance, Davis argues “[t]he district court’s stated 

concerns about Mr. Davis’s access to ‘more programming and 

more expansive inmate resources’ do not make sense in this 

case, where Mr. Davis was not languishing in a county jail, 

but out on pretrial release, where he could have obtained any 

necessary additional services.” Id. Moreover, Davis argued, 

on pre-trial release he was able to earn money for his eventual 

restitution payments to his victims, and therefore it was 

within the interest of justice to delay his hearing and eventual 

incarceration. 
No. 21-1854 11

The judge’s order scheduling the telephonic plea stated 

that pursuant to the CARES Act, “the assigned judge finds 

that further delay of this hearing would cause serious harm to 

the public interests of justice, because the Defendant wishes 

to advance the case so that he may accelerate the designation 

to a Bureau of Prisons facility, which offers more programming and more expansive inmate resources.” R. 143 at 1. It is 

certainly possible that the court, inundated with petitions and 

confusion during the chaotic beginnings of an unprecedented 

pandemic, may have issued an order that could have been 

more well-tailored to Davis’ particular situation. But in the tumult of the early days of the pandemic, imprecision could be 

expected. The court did indeed make a finding under the 

CARES Act that the “further delay of th[e] hearing would 

cause serious harm to the interests of justice.” R. 143 at 1. And, 

in fact, that is true. The case had languished for three years, 

and clearly the public interest in justice is served by incarcerating the guilty, preventing backlog, and having cases move 

efficiently and in a timely manner through the justice system.

Davis’ argument on appeal is, in its essence, an argument 

that the district court erred in its application of the CARES 

Act to his case. Davis, however, waived this error and, in fact, 

all district court error. As we explained recently in United 

States v. Coffin, 23 F.4th 778 (7th Cir. 2022), 

the CARES Act created an exception to the rule 

that the defendant must be physically present in 

the courtroom. Section 15002(b) of the Act specifically authorizes plea and sentencing hearings by videoconference if the defendant consents and the three other statutory prerequisites 

are met. [The defendant] now challenges the 
12 No. 21-1854 

judge’s compliance with one of the CARES Act 

prerequisites—the requirement of case-specific 

“interests of justice” findings. That’s a claim of 

CARES Act error—not Rule 43(a) error—and 

Coffin waived any claim of CARES Act error by 

expressly declining the opportunity to object to 

the judge’s findings under the Act.

Id. at 781. This is precisely what happened in Davis’ case. Like

Coffin, if Davis “had any objections to the Judge’s CARES Act 

findings, he could and should have brought them to the district court’s attention rather than waiting until the appeal to 

complain for the first time.” Id. (internal citations omitted). 

In this case, however, we need not delve into Davis’ 

waiver of this specific CARES Act claim (although we will address it later below), because Davis waived all appellate 

claims of error. Davis entered into a plea agreement which included a complete waiver of any issues that might have been 

available if he had exercised his right to trial, including the 

right to appeal any pre-trial rulings by the court. R. 149 at 13–

14. An alleged error in application of the CARES Act is subject 

to this waiver just like any other claim of error.

When a defendant knowingly and voluntarily enters into 

a plea agreement to waive his appellate rights, and the terms 

of that waiver are express and unambiguous, we will enforce 

those terms. United States v. Smith, 759 F.3d 702, 706 (7th Cir. 

2014). Davis does not claim that the waiver was ambiguous 

and not express, and he does not deny that he entered into it

knowingly and voluntarily, therefore that is the end of the 

matter. See United States v. Cavender, 228 F.3d 792, 803 (7th Cir. 

2000). 
No. 21-1854 13

But even if Davis had not entered into an agreement waiving his right to appeal any and all errors in the district court, 

he certainly waived the right to object to the district court’s 

handling of the CARES Act procedure for holding plea hearings by telephone conference. Not only did he not object below, but he affirmatively consented to it. Davis unequivocally 

agreed to conduct the plea agreement by telephone on two 

occasions. At the status hearing on September 24, 2020, Davis’ 

counsel, with Davis on the line, explicitly stated in response 

to a question from the court that Davis was agreeable to conducting the plea hearing by telephone. R. 14 at 3–4. Second, at 

the plea hearing on January 19, 2021, counsel for Davis (with 

Davis beside him in his office), stated, “[w]e’ve discussed it 

with Mr. Davis and agree to proceed via telephone pursuant 

to the CARES Act.” R. 184 at 4. Davis also failed to object to 

any of the five minute orders stating that the plea hearing 

would be held by telephone, or the order in which the court 

memorialized that Davis had agreed to appear by telephone. 

R. 143, 144, 145, 146, 147. And when discussing the sentencing 

hearing, the court and parties engaged in an extended conversation about whether the sentencing hearing might be held in 

person if the government decided to call witnesses (it did not). 

R. 184 at 26–28. This colloquy demonstrates that Davis’ counsel knew how to ask for an in person hearing, was prepared 

to do so, and considered the strategies for when he needed to 

appear in person and when he did not. Davis’ counsel discussed with the court at length his strategic thinking, noting 

that if he needed to cross-examine government witnesses, he 

would want to do that in person, otherwise he would be amenable to a video or telephonic sentencing. 

Davis intentionally relinquished a known right when he 

expressly stated on the record that he had no objection to the 
14 No. 21-1854 

telephonic change of plea hearing. United States v. Robinson, 

964 F.3d 632, 639–40 (7th Cir. 2020). The district court judge 

directly asked Davis’ attorney if he had any objection to the 

use of the CARES Act procedure. Counsel said he did not. 

That is a textbook waiver. Coffin, 23 F.4th at 781. Thus Davis 

clearly and unequivocally waived his argument that the district court erred when it found that the plea hearing could not 

be further delayed without serious harm to the interests of 

justice. Had Davis thought that waiting to hold the plea hearing until the pandemic ended or delaying it for some time 

would have served his interests better, it was incumbent upon 

him to inform the court. Instead, he did the opposite and affirmatively consented to the telephonic hearing. 

In sum, by signing a plea agreement waiving his right to 

appeal, Davis waived his right to appeal all errors, including 

any specific errors made in the application of the CARES Act. 

Moreover, he waived any error in application of the CARES 

Act in the district court. For these reasons his appeal is 

DISMISSED.