United States District Court, S.D. New York
Decided February 4, 2014
For Alfredo Davis, Defendant: Efrat Frida Fish, Linklaters, New York, NY; Lance Robert Croffoot-Suede, Lance Crofoot-Suede, Martin S Bloor, Patrick Coby Ashby, Linklaters, LLP, New York, NY.
For USA, Plaintiff: Glen Garrett McGorty, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY; Rachel Maimin, LEAD ATTORNEY, United States Attorney Office, SDNY, New York, NY; Parvin Daphne Moyne, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.
OPINION AND ORDER DENYING RECONSIDERATION AND MOTION TO WITHDRAW GUILTY PLEA
ALVIN K. HELLERSTEIN, United States District Judge.
Defendant Alfredo Davis pled guilty to conspiring to commit two robberies and brandishing a firearm in connection with the robberies. Soon after I allocuted him and accepted his plea, he informed his attorney that he regretted it and six months later he moved to withdraw it. I denied his motion. United States v. Davis, 906 F.Supp.2d 305 (S.D.N.Y. 2012). Davis now moves for reconsideration based on a recent change of Supreme Court doctrine. See Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). By this order and opinion, I deny Davis' motion for reconsideration and to withdraw his plea.
This case involves eight gunpoint robberies of small grocery stores, known as bodegas, in the Bronx, New York, from January to March 2011. Alfredo Davis and two co-defendants, Jose Nales and Tyrone Alston, were charged with the crimes. All three have pled guilty. Nales and Alston have been sentenced.
A federal grand jury indicted Davis, Nales, and Alston, on August 8, 2011. Davis was charged with six counts: a Hobbs Act conspiracy to commit eight robberies in violation of 18 U.S.C. § 1951; committing three of the robberies, on January 7, February 26, and March 15, 2011, in violation of 18 U.S.C. § § 1951 and 1952; and carrying firearms in furtherance of two of the robberies, on February 26 and March 15, in violation of 18 U.S.C. § § 924(c)(1)(A)(ii), 924(c)(1)(C)(i), and 922. Co-Defendant Nales was included in the conspiracy charge, the robbery charge of February 26, and the gun charge related to that robbery. Co-Defendant Alston was included in the conspiracy charge and the January 7 robbery charge.
On April 17, 2012, Nales pled guilty to the February 26, 2011 robbery. Nales was sentenced on July 27, 2012, to sixty months in custody, followed by three years of supervised release. On July 11, 2012, Alston pled guilty to resisting arrest in violation of 18 U.S.C. § 111(a). Alston was sentenced on October 4, 2012 to time served (seven days), followed by twelve months supervised release.
Davis entered plea negotiations with the government. The government told Davis that should he proceed towards trial, the government would seek to supersede the indictment by alleging, under 18 U.S.C. § 924(c), that firearms were used in each of the eight robberies involved in the Hobbs Act conspiracy. Davis' attorney advised Davis that this could result in a mandatory sentence of at least 182 years. Davis and the government reached an agreement for Davis to plead guilty to a Hobbs Act robbery conspiracy involving only the robberies of February 26 and March 15, 2011, and one count of brandishing a firearm in connection with the Hobbs Act conspiracy. On these charges, Davis faced a Sentencing Guidelines range of 125 to 135 months imprisonment and a mandatory minimum sentence of seven years as a result of the brandishing count, 18 U.S.C. § 924(c)(1)(A). See Plea Agreement, Letter from Hon. Preet Bharara, U.S. Attorney, to Jesse Siegel, Esq., attorney for Alfredo Davis (Apr. 18, 2012).
Davis scheduled a plea allocution before me on April 20, 2012. At the allocution, I advised Davis,
a plea of guilty puts an end to all potential objections that you have to the legal sufficiency of the indictment, to any of the activities that flow from the indictment or the superseding information. You are pleading guilty because you are really guilty as you will tell me and all defenses are ended. If you want to stay with your defenses, you should not be pleading guilty. Do you understand that?
Apr. 20, 2012, Tr. at 2:13-21. Davis answered, " Yes." Id.
I advised Davis that Jose Nales, one of his two co-defendants on the conspiracy charge and his co-defendant on the charge of robbery on February 26, 2011, had told me, at his plea allocution, that Davis did not commit the robbery of February 26, 2011:
You should both know also [Davis and Jesse Siegel, Esq., his attorney] that one of the co-Defendants has told me that you are not guilty. Of course, that has nothing to do with his plea. He pled guilty but he told me that you are not guilty.
Id. at 3:14-17. I then advised Davis that should he plead guilty, he would be giving up his motion to suppress and that therefore I would not be deciding his motion. Davis consulted with his attorney off the record. I asked, " Do you want to proceed, Mr. Davis?" Davis answered, " Yes." Id. at 4:3-19.
I asked Davis if anyone had pressured him in any way to cause him to plead guilty, Davis answered, " No." Id. at 8:18-20. Defendant expressed his satisfaction with the legal services of his attorney, Siegel. Id. at 8:12-17.
I then asked the government to describe the crimes with which Davis was charged. Id. at 11:15-16. The government stated that Davis was charged with two counts. The government described the elements of the first count, participating in a Hobbs Act robbery conspiracy as follows: " [T]here are . . . two elements; first, that there was such a conspiracy or agreement and, second, that the defendant knowingly joined the conspiracy." Id. at 11:25-12:3. The government described the elements of the second count, using, carrying, and brandishing a firearm during this robbery conspiracy, as follows: " That crime has three elements; first, on or about the dates set forth in the information . . . the defendant either used, carried, or possessed a firearm during the robbery conspiracy and in furtherance of that robbery. The government would also establish the defendant or a co-conspirator brandished the firearm during the robbery conspiracy." Id. at 12:10-18.
Davis testified that he understood that these were the two crimes he was charged with committing. Id. at 13:21-23. Davis admitted his guilt:
THE COURT: Mr. Davis, are you offering to plead guilty because you believe that you are in fact guilty of both crimes charged?
THE DEFENDANT: Yes.
Id. at 19:15-18.
I then questioned Davis on the details of the crime to which he was pleading guilty:
THE COURT: Tell me what you did.
THE DEFENDANT: I agreed with somebody to rob the store.
THE COURT: Rob a bodega.
THE DEFENDANT: Yes.
THE COURT: When did you reach this agreement?
THE DEFENDANT: Between January and March 15, 2011.
THE COURT: These are the bodegas in the Bronx that [Assistant U.S. ...