22-1539-cr United States v. Delvalle

In the United States Court of Appeals For the Second Circuit

August Term, 2023 No. 22-1539-cr

UNITED STATES OF AMERICA, Appellee,

v.

KEVIN DELVALLE, Defendant-Appellant. *

On Appeal from a Judgment of the United States District Court for the Southern District of New York.

SUBMITTED: JANUARY 11, 2024 DECIDED: MARCH 5, 2024

Before: KEARSE, LYNCH, AND NARDINI, Circuit Judges.

*The Clerk of Court is respectfully directed to amend the caption as set forth above. Defendant-Appellant Kevin Delvalle pled guilty in the United States District Court for the Southern District of New York to conspiracy to distribute and possess with intent to distribute twenty- eight grams or more of crack cocaine, in violation of

, 841(a), and 841(b)(1)(B). The district court (Victor Marrero, District Judge) imposed a 420-month sentence, within the Guidelines range stipulated in the plea agreement. On appeal, Delvalle argues that his guilty plea was involuntary because, at the time of the plea, he believed that he would receive a below-Guidelines sentence. We disagree. During the plea colloquy, the court confirmed that Delvalle had not been promised any particular sentence, and that Delvalle understood that a below-Guidelines sentence was only a “possibility.” Delvalle’s plea was not rendered involuntary simply because he subjectively expected to receive a lower sentence than he ultimately received. Accordingly, we affirm the judgment of the district court.

Jessica Feinstein, Olga I. Zverovich, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Robert J. Boyle, New York, NY, for Defendant-Appellant.

PER CURIAM:

Defendant-Appellant Kevin Delvalle pled guilty in the United

States District Court for the Southern District of New York to a drug

2 conspiracy involving twenty-eight grams or more of crack cocaine, in

violation of

, 841(a), and 841(b)(1)(B). In his plea

agreement, the parties stipulated that Delvalle’s advisory range under

the United States Sentencing Guidelines was 360 to 480 months, with

a statutory minimum term of 60 months. During his guilty plea

hearing before a magistrate judge (Katharine H. Parker, Magistrate

Judge), Delvalle acknowledged that he had not been “promised” a

below-Guidelines sentence, but nevertheless thought that it was a

“big maybe.” App’x at 45. The district judge (Victor Marrero, District

Judge) eventually imposed a sentence of 420 months, at the midpoint

of his stipulated Guidelines range.

On appeal, Delvalle challenges his guilty plea as involuntary.

He argues that, at the time of his plea, he believed that he would

receive a below-Guidelines sentence, and that this belief influenced

his decision to plead guilty. He contends that the district court—

aware that he had this subjective expectation—violated Rule 11 of the

3 Federal Rules of Criminal Procedure by accepting his plea. We

disagree. The magistrate judge assiduously complied with her

obligation under Rule 11 by confirming with Delvalle that no promise

of a below-Guidelines sentence had been made to him and that he

understood that such a sentence was merely a possibility. Thus, the

district judge committed no error in later accepting that plea as

voluntary. We reiterate the well settled rule that a defendant’s guilty

plea is not involuntary simply because he had, at the time of entering

his plea, a mistaken expectation that he would receive a lesser

sentence than what the district court ultimately imposed.

Accordingly, we affirm the district court’s judgment.

I. Background

Delvalle and his co-defendants, Denfield Joseph and Paris Soto,

(collectively, the “Defendants”) were gang members who sold drugs

and committed armed robberies in the Bronx, New York between

2009 and 2010.

4 In March 2010, Donnell Harris, who was homeless and staying

on the roof of Joseph’s building, began spending time with

Defendants. Harris repeatedly asked to participate in the armed

robberies with them, but Defendants demurred. Harris’s requests to

join the robbery crew escalated to a threat, after Delvalle and Joseph

deceived a customer called “Drop” by selling him chopped-up soap

rather than crack cocaine. Drop eventually realized that he had been

duped and, seeking retribution, went to Defendants’ neighborhood

with a gun. Harris learned of the deception and threatened Delvalle

and Joseph that he would tell Drop where to find them unless they

gave him part of the proceeds from the fraudulent sale. Dissatisfied

with this choice between sharing their profits and having their

whereabouts exposed by Harris, Defendants took a third approach:

they murdered Harris on August 31, 2010. It was no simple affair.

They stabbed Harris with kitchen knives and beat him with pots, then

tried to drown him in a bathtub, and eventually strangled him with

5 an extension cord. For good measure, they dismembered Harris’s

body, bagged and loaded it into a shopping cart, doused it in lighter

fluid, and lit it on fire.

Years passed before Delvalle would be held responsible for the

murder. On March 14, 2018, a grand jury indicted Delvalle on two

counts in connection with Harris’s death: (i) murder in aid of

racketeering activity, in violation of

(a)(1), and

(ii) murder in connection with a drug crime, in violation of

(e)(1)(A). The parties then negotiated a plea agreement under

which Delvalle would plead guilty to a one-count superseding

information charging him with conspiracy to distribute and possess

with intent to distribute twenty-eight grams or more of crack cocaine,

in violation of

, 841(a), and 841(b)(1)(B). As a

condition of his guilty plea, Delvalle would admit to his role in the

Harris murder, and his Guidelines range would be determined by

reference to the murder guideline under U.S.S.G. §§ 2D1.1(d)(1) and

6 2A1.1. In exchange, the government agreed not to separately

prosecute Delvalle for his participation in murdering Harris, among

other things. With the murder charge gone, Delvalle’s maximum

sentence exposure dropped from life imprisonment (or, potentially,

the death penalty) to 40 years in prison. The parties stipulated to a

Guidelines range of 360 to 480 months of imprisonment, with a

statutory minimum term of 60 months. The plea agreement noted

that “neither the Probation Office nor the Court is bound by the . . .

Guidelines stipulation,” that “the sentence to be imposed upon the

defendant is determined solely by the Court,” and that the

government “cannot, and does not, make any promise or

representation as to what sentence the defendant will receive.” App’x

at 17.

Appearing before a magistrate judge on November 15, 2019,

Delvalle waived indictment, pled guilty to the information, and

entered into the plea agreement. In conformity with Rule 11 of the

7 Federal Rules of Criminal Procedure, the magistrate judge advised

Delvalle of his rights and the consequences of his guilty plea.

Specifically, the magistrate judge reviewed with Delvalle the

penalties for the offense charged in the information and confirmed

with him that he had read, understood, and discussed the plea

agreement with his counsel. The magistrate judge also confirmed

with Delvalle that he understood that neither the Probation Office nor

the district judge was bound by the recommendations in the plea

agreement; that the district judge would ultimately determine his

sentence based on the factors set forth in

(a); and that

Delvalle would not be able to withdraw his guilty plea even if the

“sentence may be more severe than [he] expect[s],” App’x at 40.

The magistrate judge then questioned Delvalle to determine

whether his decision to plead guilty was the result of any promises

outside of the plea agreement or any threats:

8 THE COURT: Mr. Delvalle, aside from what’s in the plea agreement itself, have any promises been made to you to influence you to plead guilty?

(Defendant conferred with counsel)

THE DEFENDANT: No.

THE COURT: Have any promises been made to you concerning the actual sentence that you will receive to get you to plead guilty?

THE DEFENDANT: A below-guidelines sentence.

THE COURT: Somebody promised you that you would get a below-guidelines sentence?

THE DEFENDANT: Not a promise, but a big maybe.

THE COURT: Oh, so you understand there could be a possibility of that?

THE DEFENDANT: Yes.

THE COURT: All right. But that wasn’t promised to you? THE DEFENDANT: No.

THE COURT: Have any threats been made to you to coerce you into pleading guilty?

THE DEFENDANT: No.

9 App’x at 45–46.

After this exchange, Delvalle pled guilty and affirmed that his

decision to do so was “voluntary and made of [his] own free will.”

. The magistrate judge recommended that the district judge

accept Delvalle’s guilty plea, finding that he was “competent to enter

a guilty plea” and “voluntarily ple[d] guilty.”

. On December

11, 2019, the district judge accepted Delvalle’s guilty plea based on his

finding that Delvalle “entered the guilty plea knowingly and

voluntarily and that there was a factual basis for the plea[.]” United

States v. Delvalle, No. 1:17-cr-314 (S.D.N.Y. Dec. 11, 2019), ECF No. 89,

at 1. The district judge eventually sentenced Delvalle to 420 months

of imprisonment, to be followed by four years of supervised release.

Judgment entered on July 11, 2022, and this appeal followed.

II. Discussion

On appeal, Delvalle argues that the district court violated Rule

11 because it failed to ensure that his guilty plea was voluntary and

10 “not influenced by a ‘promise-like’ representation not set forth in the

plea agreement.” Appellant’s Br. at 17. Delvalle raises this argument

for the first time on appeal, so we review any purported Rule 11

violation for plain error. Fed. R. Crim. P. 52(b) (“A plain error that

affects substantial rights may be considered even though it was not

brought to the court’s attention.”); United States v. Vonn,

(2002) (holding that Rule 52(b) applies to Rule 11 errors); United

States v. Collymore,

(2d Cir. 2023) (“Where, as here, a

defendant never objected in the district court to the purported Rule

11 violation, the defendant must establish plain error.”). For an error

to be “plain,” it “must be[, inter alia,] ‘obviously wrong in light of

existing law.’” Collymore,

(quoting United States v.

Pipola,

(2d Cir. 1996)).

“Rule 11 sets forth requirements for a plea allocution and is

designed to ensure that a defendant’s plea of guilty is a voluntary and

intelligent choice among the alternative courses of action open to the

11 defendant.” Zhang v. United States,

(2d Cir. 2007)

(quoting United States v. Andrades,

(2d Cir. 1999)

(internal quotation marks omitted)). One of the district court’s tasks

under Rule 11 is to “determine that the plea is voluntary and did not

result from force, threats, or promises (other than promises in a plea

agreement).” Fed. R. Crim. P. 11(b)(2). A plea is involuntary if it is

“the product of actual or threatened physical harm, mental coercion

overbearing the defendant’s will, or the defendant’s sheer inability to

weigh his options rationally.” United States v. Roque,

(2d Cir. 2005) (quoting Miller v. Angliker,

(2d Cir.

1988)).

We hold that the district court did not err, much less plainly err,

by accepting Delvalle’s guilty plea. Delvalle makes no claim that his

plea was obtained through coercion, whether in the form of force or

threats. And during his plea colloquy he explicitly disclaimed having

received any promises, apart from those set forth in his plea

12 agreement. The magistrate judge squarely asked Delvalle, “aside

from what’s in the plea agreement itself, have any promises been

made to you to influence you to plead guilty?” App’x at 45. After

conferring with counsel, Delvalle stated, “No.”

The magistrate

judge continued her questioning, asking specifically whether any

promises had been made to Delvalle concerning his sentence, to

which Delvalle responded, “A below-guidelines sentence.”

That

response quite appropriately prompted further inquiry by the

magistrate judge. Delvalle immediately clarified that it was “[n]ot a

promise,” and that he understood that a below-Guidelines sentence

was only “a big maybe,” or, in other words, a “possibility.”

Based

on this record, we agree with the district court that Delvalle’s plea was

entered voluntarily—that is, free from force, coercion, or undisclosed

promises.

Acknowledging that there was no “formal promise,”

Appellant’s Br. at 11, Delvalle nevertheless argues that his plea was

13 involuntary because it “was induced by” his “belief” or “expectation”

that he would receive a below-Guidelines sentence, id. at 12. In this

respect, he contends that his case is like United States v. Gonzalez,

where we vacated a defendant’s guilty plea and conviction after a

defendant claimed that his counsel had “basically told him that he

was guaranteed probation.”

(2d Cir. 1987). But in

Gonzalez, unlike the case at hand, the district court conducted no

inquiry whatsoever during the Rule 11 colloquy into the

voluntariness of the defendant’s plea.

at 579–80. Afterward, at

sentencing, defense counsel moved to be relieved as counsel based on

the defendant’s assertion that he was innocent and “pled guilty on the

advice of his attorney.”

. The district court denied the

motion and adjourned sentencing.

When the parties reappeared

for sentencing, defense counsel renewed the motion to be relieved

and moved, in the alternative, to withdraw the plea.

Defense

counsel stated that the defendant informed him that the defendant

14 expected a sentence of probation, did not know at the time of entering

his plea that imprisonment was a possibility, and did not recall his

counsel telling him that he could go to prison.

The district court

denied both motions and imposed a sentence that included a term of

imprisonment.

On appeal, we vacated the defendant’s guilty plea,

explaining that “the absence of any inquiry at all on the subject” of

voluntariness during the plea colloquy ran afoul of the requirement

of “strict compliance with Rule 11.”

. Without such

inquiry, we reasoned, the district court was unable “to dispel any

belief a defendant may have that any promise or promise-like

representation made to him by anybody is binding on the court.”

.

That is certainly not the case here because, as described above,

the magistrate judge satisfied Rule 11 by making a thorough inquiry

into the voluntariness of the plea; confirming with Delvalle that he

had not received any promises regarding his sentence, beyond what

15 was laid out in the plea agreement; and making it clear that any

sentencing recommendation was not binding on the court.

Indeed, it is well settled that a defendant’s guilty plea is not

involuntary simply because he has a mistaken expectation at the time

of entering his plea of what his sentence will be, even if his

expectation is based on his lawyer’s erroneous prediction about what

sentence the court will impose. For example, in United States ex rel.

LaFay v. Fritz, defendant LaFay claimed that his counsel told him that

the state judge promised a sentence of no more than five years of

imprisonment and that, as a result, he believed that such a promise

existed at the time of entering his plea.

(2d Cir.

1972). The state judge imposed a sentence much longer than five

years of imprisonment; dissatisfied, LaFay filed a habeas petition that

challenged the voluntariness of his plea.

at 299–300. After a

hearing, the district court found that the state judge had not made any

promise to the defense counsel. See

. But it nevertheless

16 set aside the conviction on the ground that LaFay “believed

reasonably” that such a promise had been made, where counsel

testified that he had conveyed his “understanding or impression” that

the judge would limit the sentence to five years.

We reversed. As an initial matter, we confirmed the district

court’s finding that “neither the sentencing court nor the prosecution

made any promise to defense counsel.”

. The only basis for

LaFay’s belief that there had been a judicial promise was defense

counsel’s communication to his client that he had a “feeling that the

sentence would be no more than five years.”

We then rejected

what we described as the district court’s “wholly subjective test,

namely, LaFay’s belief as to what his sentence might be at the time he

entered his guilty plea.”

Such a test was inappropriate even if

LaFay’s belief had been influenced by his lawyer’s prediction as to

what sentence the court would likely impose. “An erroneous

sentence estimate by defense counsel does not render a plea

17 involuntary.”

at 302 (quoting United States ex rel. Bullock v. Warden,

Westfield State Farm,

(2d Cir. 1969)).

Drawing on longstanding precedent, we pointed to the

mischief that was likely to ensue if a defendant could withdraw his

plea based on nothing more than a claim that his lawyer had “misled

his client into being too hopeful” of a light sentence:

If on so flimsy a basis as this, amounting, at least at the actual time of plea, to no more than counsel’s hope for a suspended sentence, a plea of guilty may be withdrawn, it is obvious that an accused may safely indulge in a plea of guilt as a mere trial balloon to test the attitude of the trial judge, being reasonably secure in the knowledge that he can withdraw it without great difficulty.

(quoting United States v. Weese,

(2d Cir. 1944)); see

also United States ex rel. Curtis v. Zelker,

(2d Cir.

1972) (“Although a claim frequently asserted is that the guilty plea

was entered by the prisoner in the erroneous belief, induced by

discussions with his lawyer, that he would receive a lesser sentence

than that ultimately imposed or that he would be permitted to

18 withdraw his guilty plea, this has repeatedly been held insufficient to

warrant the issuance of a writ.”). Accordingly, even if Delvalle’s hope

of a lighter sentence was based on overly optimistic predictions by his

lawyer of what sentence the district court would impose, that hope

does not undermine the voluntariness of his guilty plea.

Of course, things would be different if the defendant had

actually received an undisclosed promise from the judge or the

government. See, e.g., Santobello v. New York,

(1971)

(“[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.”).

Likewise, if defense counsel had in fact misrepresented to the

defendant that the judge had promised a particular sentence, and the

judge then imposed a heavier sentence, the defendant’s plea could be

subject to vacatur as involuntary (and counsel would have been

constitutionally ineffective). See Mosher v. Lavallee,

, 1348

19 (2d Cir. 1974). But neither situation is present here, where Delvalle

acknowledged during the plea colloquy that he had received no

promises, beyond those in the plea agreement, about what sentence

he would receive.

III. Conclusion

In sum, we hold that the district court did not err by accepting

Delvalle’s guilty plea.

1. The district court fulfilled its obligations under Rule 11 by determining that Delvalle had not received any promises regarding his sentence beyond what was contained in his plea agreement; and

2. Delvalle’s guilty plea was not involuntary simply because he had, at the time of entering his plea, a mistaken expectation that he would receive a lesser sentence than what the district court ultimately imposed.

Accordingly, we AFFIRM the judgment of the district court.

20