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 21 U.S.C. §§ 846, 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 21 U.S.C. §§ 846, 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 18 U.S.C. § 1959(a)(1), and
(ii) murder in connection with a drug crime, in violation of 21 U.S.C.
§ 848(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 21 U.S.C. §§ 846, 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 18 U.S.C. § 3553(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?
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.” Id.
at 46. 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.” Id. at 48. 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, 535 U.S. 55,
63 (2002) (holding that Rule 52(b) applies to Rule 11 errors); United
States v. Collymore, 61 F.4th 295, 298 (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, 61 F.4th at 298 (quoting United States v.
Pipola, 83 F.3d 556, 561 (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, 506 F.3d 162, 168 (2d Cir. 2007)
(quoting United States v. Andrades, 169 F.3d 131, 133 (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, 421 F.3d 118, 122
(2d Cir. 2005) (quoting Miller v. Angliker, 848 F.2d 1312, 1320 (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.” Id. 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.” Id. 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.” Id. 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.” 820 F.2d 575, 577 (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. Id. 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.” Id. at 577. The district court denied the
motion and adjourned sentencing. Id. When the parties reappeared
for sentencing, defense counsel renewed the motion to be relieved
and moved, in the alternative, to withdraw the plea. Id. 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. Id. The district court
denied both motions and imposed a sentence that included a term of
imprisonment. Id. 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.” Id. at 578-79. 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.” Id.
at 579.
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. 455 F.2d 297, 298, 301 (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. Id. at 299–300. After a
hearing, the district court found that the state judge had not made any
promise to the defense counsel. See id. at 300-01. 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. Id.
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.” Id. at 301. 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.” Id. 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.” Id. 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.” Id. at 302 (quoting United States ex rel. Bullock v. Warden,
Westfield State Farm, 408 F.2d 1326, 1330 (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.
Id. (quoting United States v. Weese, 145 F.2d 135, 136 (2d Cir. 1944)); see
also United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (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, 404 U.S. 257, 262 (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, 491 F.2d 1346, 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.