14-1887-cr United States v. Davis



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 25 th** **day of June, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-1887-cr** 15 16 **ALFREDO DAVIS,** 17 **Defendant-Appellant ,**  18 19 **JOSE NALES, TYRONE ALSTON,** 20 **Defendants**

**.** 21 - - - - - - - - - - - - - - - - - - - -X 22 23 **FOR APPELLANT:** Randall D. Unger, Law Offices of 24 Randall D. Unger, Bayside, New 25 York. 26 27

1**FOR APPELLEE:** Parvin Moyne and Margaret 1 Garnett, forPreet Bharara, 2 United States Attorney for the 3 Southern District of New York, 4 New York, New York. 5 6 Appeal from a judgment of the United States District 7 Court for the Southern District of New York (Hellerstein, 8 J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11 **AND DECREED**that the judgment of the district court be 12 **AFFIRMED**

. 13 14 Alfredo Davis appeals from the judgment of the United 15 States District Court for the Southern District of New York 16 (Hellerstein, J. ), convicting him, after a guilty plea, of 17 robbery conspiracy and a related firearms offense

. We 18 assume the parties’ familiarity with the underlying facts, 19 the procedural history, and the issues presented for review. 20 21 A defendant who has pleaded guilty is entitled to 22 withdraw that plea (prior to sentencing) if he can show a 23 “fair and just reason for requesting the withdrawal.” Fed. 24 R. Crim. P. 11(d). We review for abuse of discretion a 25 district court’s denial of a motion to withdraw a guilty 26 plea. United States v. Carreto , 583 F.3d 152, 157 (2d Cir. 27 2009). 28 29 Davis contends that his plea was involuntary. The 30 district court’s conclusion to the contrary is well31 supported by the record. During the plea hearing, Davis 32 stated under oath that his plea was voluntary and not 33 coerced. The fact that he may have pleaded guilty to avoid 34 the risk of a lengthy post-trial sentence did not make the 35 plea involuntary. Brady v. United States , 397 U.S. 742, 750 36 (1970). Davis argues that the plea was involuntary because 37 the court advised him shortly before he entered the plea 38 that a codefendant had made statements exculpating him; 39 however, Davis was aware of those statements and the 40 district court’s knowledge of those statements well in 41 advance of the plea hearing. 42 43 The district court also properly rejected Davis’s 44 arguments that the plea was rendered invalid by Alleyne v. 45 United States , 133 S. Ct. 2151, 2155 (2013). In 46 anticipation of the result in Alleyne , the information 47

2charged brandishing as an element of the firearms offense; 1 and, at the plea hearing, the government characterized 2 brandishing as an element that it would have to prove at 3 trial. Davis sufficiently allocuted that he was guilty of 4 that offense: he admitted that it was “part of the plan” for 5 his coconspirator to carry a gun that would be brandished in 6 the course of executing the robbery. See Rosemond v. United 7 States , 134 S. Ct. 1240, 1243 (2014). 8 9 For the foregoing reasons, and finding no merit in 10 Davis’s other arguments, we hereby **AFFIRM** the judgment of 11 the district court. 12 13 FOR THE COURT: 14 CATHERINE O’HAGAN WOLFE, CLERK 15 16

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