     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,
 4       on the 25th day of June, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
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.
22       - - - - - - - - - - - - - - - - - - - -X
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 well-
32   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




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