14-1887-cr

United States v. Davis

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 25th 4 day of June, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 14-1887-cr

16

17 ALFREDO DAVIS, 

18 Defendant-Appellant,

19

20 JOSE NALES, TYRONE ALSTON,

21 Defendants.

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23

24 FOR APPELLANT: Randall D. Unger, Law Offices of

25 Randall D. Unger, Bayside, New

26 York.

27

1
1 FOR APPELLEE: Parvin Moyne and Margaret

2 Garnett, for Preet Bharara,

3 United States Attorney for the

4 Southern District of New York,

5 New York, New York.

6

7 Appeal from a judgment of the United States District

8 Court for the Southern District of New York (Hellerstein,

9 J.).

10

11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12 AND DECREED that the judgment of the district court be

13 AFFIRMED. 

14

15 Alfredo Davis appeals from the judgment of the United

16 States District Court for the Southern District of New York

17 (Hellerstein, J.), convicting him, after a guilty plea, of

18 robbery conspiracy and a related firearms offense. We

19 assume the parties’ familiarity with the underlying facts,

20 the procedural history, and the issues presented for review. 

21

22 A defendant who has pleaded guilty is entitled to

23 withdraw that plea (prior to sentencing) if he can show a

24 “fair and just reason for requesting the withdrawal.” Fed.

25 R. Crim. P. 11(d). We review for abuse of discretion a

26 district court’s denial of a motion to withdraw a guilty

27 plea. United States v. Carreto, 583 F.3d 152, 157 (2d Cir.

28 2009). 

29

30 Davis contends that his plea was involuntary. The

31 district court’s conclusion to the contrary is well32 supported by the record. During the plea hearing, Davis

33 stated under oath that his plea was voluntary and not

34 coerced. The fact that he may have pleaded guilty to avoid

35 the risk of a lengthy post-trial sentence did not make the

36 plea involuntary. Brady v. United States, 397 U.S. 742, 750

37 (1970). Davis argues that the plea was involuntary because

38 the court advised him shortly before he entered the plea

39 that a codefendant had made statements exculpating him;

40 however, Davis was aware of those statements and the

41 district court’s knowledge of those statements well in

42 advance of the plea hearing.

43

44 The district court also properly rejected Davis’s

45 arguments that the plea was rendered invalid by Alleyne v.

46 United States, 133 S. Ct. 2151, 2155 (2013). In

47 anticipation of the result in Alleyne, the information

2
1 charged brandishing as an element of the firearms offense;

2 and, at the plea hearing, the government characterized

3 brandishing as an element that it would have to prove at

4 trial. Davis sufficiently allocuted that he was guilty of

5 that offense: he admitted that it was “part of the plan” for

6 his coconspirator to carry a gun that would be brandished in

7 the course of executing the robbery. See Rosemond v. United

8 States, 134 S. Ct. 1240, 1243 (2014).

9

10 For the foregoing reasons, and finding no merit in

11 Davis’s other arguments, we hereby AFFIRM the judgment of

12 the district court.

13

14 FOR THE COURT:

15 CATHERINE O’HAGAN WOLFE, CLERK

16

3