09-3452-cr
USA v. Pescatore (Chavis)

                            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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 16th day of November, two thousand ten.

Present:   JOSEPH M. McLAUGHLIN,
           ROBERT A. KATZMANN,
           PETER W. HALL,
                           Circuit Judges.

____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           - v. -                        No. 09-3452-cr

MICHAEL PESCATORE,

                           Defendant,

BYRON CHAVIS,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         DAVID B. EPSTEIN, Epstein & Conroy,
                                                 Brooklyn, New York

For Appellee:                                    JAMES G. MCGOVERN, Assistant United States
                                                 Attorney (Susan Corkery, Assistant United
                                                   States Attorney, on the brief), for Loretta E.
                                                   Lynch, United States Attorney for the Eastern
                                                   District of New York, Brooklyn, New York


       Appeal from the United States District Court for the Eastern District of New York (Platt,
J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Byron Chavis appeals from a judgment of conviction, following a

guilty plea, of one count of conspiracy to commit extortion in violation of 18 U.S.C. § 1951(a)

and one count of possession of a firearm in furtherance of a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A)(I). The district court sentenced Chavis principally to 42 months’

imprisonment (12 months for the extortion conspiracy offense and a consecutive modified

mandatory minimum of 30 months for the firearm offense). On appeal, Chavis contends there

was an insufficient factual basis for his guilty plea and the district court committed procedural

error at sentencing. We assume the parties’ familiarity with the remaining facts and procedural

history of the case.

       Under Rule 11 of the Federal Rules of Criminal Procedure, the district court, “[b]efore

entering judgment on a guilty plea, . . . must determine that there is a factual basis for the plea.”

FED. R. CRIM P. 11(b)(3). Here, Chavis argues there was an insufficient factual basis for the

extortion conspiracy charge because (a) he only facilitated the payment of money by extortionate

means but did not participate in the conspiracy, and (b) the district court failed to establish the

requisite interstate commerce nexus for Hobbs Act jurisdiction, see 18 U.S.C. § 1951(a). Chavis




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also submits that the evidence was insufficient to establish that he possessed the firearm “in

furtherance of” the extortion conspiracy.

        Rule 11 does not require that the district court determine whether a jury would find the

defendant guilty or that the defendant is guilty by a preponderance of the evidence, only that the

court “assure itself simply that the conduct to which the defendant admits is in fact an offense

under the statutory provision under which he is pleading guilty.” United States v. Maher, 108

F.3d 1513, 1524 (2d Cir. 1997). In assessing whether the defendant’s conduct satisfies the

elements of the charged offense, “[t]he court may rely on defendant’s own admissions,

information from the government, or other information appropriate to the specific case.” United

States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999). We review objections to the sufficiency of

a guilty plea where the defendant raised no objection below for plain error. United States v.

Vaval, 404 F.3d 144, 151 (2d Cir. 2005).

       After reviewing the record, we find no error, much less plain error. “‘[A] reading of the

indictment to the defendant coupled with his admission of the acts described in it [provides] a

sufficient factual basis for a guilty plea, as long as the charge is uncomplicated, the indictment

detailed and specific, and the admission unequivocal.’” Andrades, 169 F.3d at 136 (quoting

United States v. O’Hara, 960 F.2d 11, 13 (2d Cir. 1992)). At the plea hearing, Chavis and his

attorney reviewed the district court’s “Standard Plea” statement, which included the elements of

conspiracy to commit extortion, and Chavis signed the statement to indicate he understood the

crimes to which he intended to plead guilty. As part of the plea colloquy, the district court

reviewed Chavis’s answers to the plea statement, and Chavis reiterated that his answers were

truthful. The district court then read the relevant counts of the indictment, which are sufficiently


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detailed, and Chavis unequivocally admitted to the conduct described therein. Chavis

affirmatively indicated that he joined the extortion conspiracy with intent to affect commerce

and willfully participated in that conspiracy by going to the victim’s business to obtain money by

the wrongful use of threatened force, violence, or fear. This admission is sufficient to establish

the de minimis effect on interstate commerce necessary for Hobbs Act jurisdiction. See, e.g.,

United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010) (“[A]ll that need be shown is the

possibility or potential of an effect on interstate commerce, not an actual effect.” (internal

quotation marks omitted)); United States v. Perrotta, 313 F.3d 33, 37-38 (2d Cir. 2002). Chavis

also acknowledged that his firearm was visible to the victim, which thereby “afforded some

advantage (actual or potential, real or contingent)” to his extortionate activity, thus establishing

that the firearm’s possession was “in furtherance of” the extortion. United States v. Lewter, 402

F.3d 319, 322 (2d Cir. 2005). In addition, the government’s explanation of Chavis’s conduct it

would have proven at trial also addressed all of the necessary elements of the two offenses. In

light of the district court’s reliance “on [the] defendant’s own admissions [and] information from

the government,” Andrades, 169 F.3d at 136, we conclude that the district court complied with

Rule 11’s requirement that “the district court satisfy itself regarding the factual basis for

[Chavis’s] guilty plea,” id.

       Nor do we find persuasive Chavis’s argument that the district court failed to consider the

relevant factors under 18 U.S.C. § 3553(a) or explain the reasons for the sentence imposed. This

Court presumes, in the absence of record evidence to the contrary, of which there is none here,

“that a sentencing judge has faithfully discharged her duty to consider the statutory factors.”

United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). Nor is the district court required to


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“expressly parse or address every argument relating to those factors that the defendant

advanced.” Id. Here, the district court’s effort to weigh the mitigating factors against the

severity of the offense and Chavis’s position as a law enforcement officer demonstrates that the

district court took account of the relevant factors under § 3553(a) and provided a reasoned

explanation for the sentence imposed.

       We have considered Chavis’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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