United States v. Erskine

• Court: Court of Appeals for the Second Circuit
• Decided: June 2, 2026
• Docket: 24-3202 (L)
• Status: Unpublished

Opinion

24-3202 (L) United States v. Erskine

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of June, two thousand twenty-six.

PRESENT:

RICHARD C. WESLEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. Nos. 24-3202 (L), 25-101 (Con)

CASWELL SENIOR, a.k.a. CASANOVA, WALTER LUSTER, a.k.a. SHELLS, NAYA AUSTIN, a.k.a. BABY, BRANDON NIEVES, a.k.a. UNTOUCHABLE DOT, DEZON WASHINGTON, a.k.a. BLAKK, ROBERT WOODS, a.k.a. BLAKK ROB, STEPHEN HUGH, a.k.a. CHINO, JORDAN INGRAM, a.k.a. FLOW, SHANAY OUTLAW, a.k.a. EASY, ISAIAH SANTOS, a.k.a. ZAY, ROBERTA SLIGH, a.k.a. TROUBLE, BRINAE THORNTON, a.k.a. LUXURY, JAMAL TRENT, a.k.a. TRAP SMOKE, JARRETT CRISLER, JR., a.k.a. JAYECEE, JR., DONAVAN GILLARD, a.k.a. DONNIE LOVE, BRANDON SOTO, a.k.a STACKS, DWIGHT REID, a.k.a. DICK WOLF, AHMED WALKER, a.k.a. AMMO,

Defendants,

CHRISTOPHER ERSKINE, a.k.a. BEAGLE, DESHAWN THOMAS, a.k.a. DON,

Defendants-Appellants. _____________________________________

For Defendant-Appellant BEVERLY VAN NESS, New York, NY. Christopher Erskine:

For Defendant-Appellant DAVID TOUGER, Peluso & Touger, LLP, Deshawn Thomas: New York, NY.

For Appellee: SHIVA H. LOGARAJAH (David R. Felton, Courtney Heavey, Kathryn Wheelock, Olga I. Zverovich, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

2 Appeal from judgments of the United States District Court for the

Southern District of New York (Philip M. Halpern, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the December 2, 2024 and December 23, 2024

judgments of the district court are AFFIRMED.

Christopher Erskine appeals from a judgment of conviction following an

eleven-day jury trial in which he was found guilty of racketeering conspiracy, in

violation of 18 U.S.C. §§ 1962(d) and 1963 (Count One); possession with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C.

§ 2 (Count Two); and narcotics conspiracy, in violation of 21 U.S.C. § 846 (Count

Three), for which he was sentenced to concurrent terms of 420 months’

imprisonment, to be followed by five years’ supervised release. Deshawn Thomas

separately appeals from a judgment following his plea of guilty to racketeering

conspiracy (Count One), and possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count

Seventeen), for which he was sentenced to an aggregate term of 248 months’

imprisonment, to be followed by five years’ supervised release. Both convictions

relate to Defendants’ membership in the Untouchable Gorilla Stone Nation

3 (“Gorilla Stone”), a New York-based criminal enterprise with a history of engaging

in acts of violence, narcotics trafficking, and fraud.

In this consolidated appeal, Erskine argues that the district court

(i) erroneously denied his motion for a new trial after the government knowingly

put on false testimony, (ii) should have declared a mistrial due to the government’s

improper summation, and (iii) made a series of erroneous evidentiary rulings

during trial. For his part, Thomas contends that the district court erred in failing

to grant his motion to withdraw his guilty plea. Each defendant also challenges

the reasonableness of his sentence. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal, to

which we refer only as necessary to explain our decision.

I. Erskine’s Challenges to His Conviction and Sentence are Without Merit.

A. The District Court Did Not Err in Denying Erskine’s Motion for a New Trial Due to Perjured Testimony.

Erskine, the second-in-command of the Gorilla Stone gang, first challenges

the district court’s denial of his motion for a new trial on the ground that the

government’s principal witness, Walter Luster, provided willfully false testimony

that the government was aware of and failed to correct. In particular, he contends

that Luster falsely testified to (i) the identity of Erskine’s building superintendent

4 in a photograph; (ii) the fact that Erskine had a master key that allowed him to

traverse buildings underground; and (iii) the appearance of Erskine’s building in

a photograph.

We review a district court’s denial of a motion for a new trial for “abuse of

discretion, and the factual findings in support of such a decision for clear error.”

United States v. Walters, 910 F.3d 11, 29 (2d Cir. 2018). And “[r]eversal of a

conviction based upon allegations of perjured testimony should be granted only

with great caution and in the most extraordinary circumstances.” United States v.

Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (internal quotation marks omitted). To

establish his entitlement to a new trial on the ground that the witness committed

perjury, a defendant must first make a “threshold showing” that a witness “in fact

willfully testified falsely and that the falsehoods were not known to [the

defendant] at the time of trial.” United States v. Aquart, 912 F.3d 1, 20 (2d Cir. 2018).

Here, Erskine cannot satisfy this “threshold showing” for any of the

challenged testimony. Id. Beginning with Luster’s misidentification of Erskine’s

superintendent, Erskine has failed to demonstrate that Luster “willfully testified

falsely” even if Erskine “conclusively established” that Luster pointed to the

wrong individual in the photo at trial. Erskine Br. at 31. That is because Luster’s

5 identification was based exclusively on what Erskine had told him: as Luster

explained on the stand, Erskine had “introduced” the man identified in the photo

by stating “that’s my man, that’s how I got the [building] key.” Erskine Trial Tr.

at 1101. Nothing in the record contradicts Luster’s version of events, and even if

Luster were mistaken about what Erskine had told him, merely “incorrect

testimony resulting from confusion, mistake, or faulty memory” does not rise to

the level of perjury. United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001)

(internal quotation marks omitted).

Erskine’s remaining two instances of alleged perjury fare no better. And

since Erskine raised neither of these challenges in his post-trial motion for a new

trial, we review only for plain error. 1 See United States v. Stephenson, 183 F.3d 110,

117–18 (2d Cir. 1999).

First, Erskine asserts that Luster perjured himself by testifying that Erskine

traveled between two different buildings “by unlocking basement doors,” when

in fact “Google maps” demonstrated that the buildings “are separated by another

1“To establish plain error, a defendant must demonstrate: (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019) (internal quotation marks omitted). Where “all three conditions are met, we will then exercise our discretion to rectify this forfeited error only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). 6 building . . . to which [the superintendent] had no access.” Erskine Br. at 32. But

again, Erskine has neither shown that Luster “testified falsely” that he traveled

with Erskine through “underground” passages nor that Erskine himself (rather

than his superintendent) was able to access these passages. Erskine Trial Tr. at

1040. Second, Erskine’s claim that the “street views” of his apartment “do not look

anything like” the building identified as Erskine’s by the superintendent at trial

does not come close to the standard for perjury. Erskine Br. at 32. And even if

Erskine could establish a misidentification, that would at most demonstrate that

Luster was “confused” or “mistaken” – and, once again, “[s]imple inaccuracies . . .

in testimony do not rise to the level of perjury.” Monteleone, 257 F.3d at 219.

Moreover, both alleged “falsehoods” were “known” to Erskine “at the time of

trial,” Aquart, 912 F.3d at 20, so the proper place to challenge them was on cross-

examination. Put simply, Erskine’s perjury-based arguments are without merit.

B. The Government’s Summation Was Not Improper.

Erskine next contends that he is owed a new trial because the government’s

summation “pressed inconsistent theories” about which defendant ordered a

drive-by shooting. Erskine Br. at 34. In particular, Erskine contends that the

government argued at his trial that he had “ordered” the shooting, while at

7 another trial it “laid” the responsibility for the event “at [a different defendant’s]

feet.” Id. at 34, 36.

We will reverse a conviction on the basis of an improper summation “only

if the summation was so extremely inflammatory and prejudicial that allowing the

verdict to stand would seriously affect the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Briggs, 457 F.2d 908, 912 (2d Cir. 1972)

(Friendly, C.J.) (internal quotation marks omitted). And since Erskine raises this

argument for the first time on appeal, our review is once more for plain error. See

United States v. Dugan, 667 F.3d 84, 86 (2d Cir. 2011).

Here, there was no error – let alone plain error – because the government’s

theories were not inconsistent. The record is clear: the government argued both

that Erskine encouraged the shooter to act in order to “liv[e] up to Gorilla Stone

principles,” and that another individual, the “gang disciplinarian,” also played a

role in bringing about the shooting. Erskine App’x at 74–75. There is nothing

contradictory about that narrative, and it is hardly surprising that neither

Erskine’s defense counsel nor the district court objected to the government’s

summation during – or after – the trial. 2

2And even if it could be argued that the government offered two inconsistent theories concerning the shooting, Erskine himself acknowledges that we “ha[ve] yet to squarely address whether the 8 C. The District Court Did Not Abuse Its Discretion in Admitting the Challenged Evidence at Trial.

Erskine next argues that the district court erred in permitting the

government to introduce (i) evidence of “uncharged crimes,” including a murder

in Poughkeepsie, a slashing in Manhattan, and a shooting in Miami; (ii) graphic

pictures and testimony associated with these crimes; and (iii) six music videos

produced by rappers associated with Gorilla Stone. Erskine contends that this

evidence had “low probative value” and was “unduly prejudicial.” Erskine Br. at

43–44. We are unpersuaded.

We review a district court’s evidentiary rulings for abuse of discretion.

United States v. McPartland, 81 F.4th 101, 114 (2d Cir. 2023). Under this standard,

we will “disturb an evidentiary ruling only where the decision to admit or exclude

evidence was manifestly erroneous.” Id. (internal quotation marks omitted). And

we “accord great deference to a district court in ruling as to the relevancy and

unfair prejudice of proffered evidence.” Id. (internal quotation marks omitted).

Due Process Clause prohibits the government from pressing inconsistent factual theories in separate prosecutions of co-defendants,” Erskine Br. at 36, which is fatal to his claim on plain- error review, since “[f]or an error to be plain, it must, at a minimum, be clear under current law,” United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks omitted).

9 Evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence,” and “the fact is of consequence.”

Fed. R. Evid. 401. But under Federal Rule of Evidence 403, a district court may

exclude relevant evidence “if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.” Fed. R. Evid. 403.

First, the district court did not abuse its discretion in admitting evidence of

the numerous uncharged crimes in Poughkeepsie, Manhattan, and Miami. It is

“well settled that in prosecutions for racketeering offenses, the government may

introduce evidence of uncharged offenses to establish the existence of the criminal

enterprise,” United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003), because the

uncharged offenses often serve as “direct evidence of the [charged] conspirac[ies]”

themselves, United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). Such evidence is

admissible “regardless of whether the [uncharged offenses] were performed by

the defendants or by other coconspirators.” United States v. Angelilli, 660 F.2d 23,

39 (2d Cir. 1981).

Here, the district court acted well within its discretion in concluding that

there was a “self-evident nexus” between the Poughkeepsie, Manhattan, and

Miami crimes and the criminal enterprise charged in the indictment. Erskine

10 App’x at 94. For starters, the perpetrator of the Miami Shooting sent a text message

to his fellow gang members admitting that he had fired at a rival gang member

while he was in Florida. Id. Gorilla Stone members were also intercepted on

wiretaps having conversations about the murder in Poughkeepsie. Id. And

Erskine promoted the perpetrator of the Manhattan slashing for taking down a

rival gang member. Erskine Trial Tr. at 1055.

Second, the graphic images and testimony of such crimes were also properly

admitted. As the district court noted in conducting its Rule 403 analysis, the jury

was entitled to see for itself the violence perpetrated by Gorilla Stone, so that it

could develop a clearer sense of the gang’s “nature” and “methods.” Erskine

App’x at 94. We have long upheld the admission of graphic images for these

reasons, as well as “to establish the human significance of [a] fact and to implicate

the law’s moral underpinnings.” United States v. Polouizzi, 564 F.3d 142, 153 (2d

Cir. 2009) (internal quotation marks omitted). And even if the images at issue were

“gruesome” and “shocking,” as Erskine contends, Erskine Br. at 45, they were

certainly no more “inflammatory than the charged crime[s],” United States v. Livoti,

196 F.3d 322, 326 (2d Cir. 1999). Thus, any potential prejudice associated with the

images would not be disproportionate to the “very serious crimes” charged nor so

11 damaging as to outweigh their probative value. United States v. Matera, 489 F.3d

115, 121 (2d Cir. 2007).

Finally, the district court did not err in admitting the rap videos. In

conducting its Rule 403 analysis, the court acknowledged that “the rap videos

[may be] subject to exclusion under [Rule] 403 when they are nothing more than

artistic expression,” but found that these videos were “probative of the

conspiracy” and of the “defendants’ intent, knowledge, [and] affiliation.” Erskine

App’x at 96. Here, the videos – with titles referencing the gang’s name, such as

“Big Ape,” “Motivate the Jungle,” “Ape Shx,” and “Heavy on the Rilla” – not only

demonstrated the existence of the criminal enterprise itself but also revealed

Erskine’s role within it. Indeed, the recordings reflect that Erskine wanted to be

included in the videos’ filming. We have recognized that rap videos can be

admitted “to establish the existence of, and [the defendant’s] participation in, the

alleged RICO enterprise.” United States v. Pierce, 785 F.3d 832, 841 (2d Cir. 2015).

On the record before us, we cannot say that the district court’s admission of the

12 videos was “arbitrary or irrational.” 3 United States v. Awadallah, 436 F.3d 125, 131

(2d Cir. 2006).

D. Erskine’s Sentence Was Reasonable.

Erskine finally argues that his sentence of 420 months’ imprisonment was

procedurally and substantively unreasonable. Again, we disagree.

A sentence is procedurally unreasonable if the district court “miscalculates

the Guidelines; treats them as mandatory; does not adequately explain the

sentence imposed; does not properly consider the [18 U.S.C.] § 3553(a) factors;

bases its sentence on clearly erroneous facts; or deviates from the Guidelines

without explanation.” United States v. McIntosh, 753 F.3d 388, 394 (2d Cir. 2014)

(internal quotation marks omitted). Erskine contends that the district court erred

when it treated a shooting in New Rochelle as relevant conduct, thereby inflating

his offense level under the Guidelines. But the Guidelines themselves make clear

that in a racketeering conspiracy, “a sentencing court may consider predicate acts

as relevant conduct.” U.S.S.G. § 1B1.3. And the predicate act relied on by the

district court was clearly “relevant” because it was “within the scope” of Gorilla

3 Because the district court committed no errors, we also reject Erskine’s argument that the cumulative-error doctrine “requires reversal” of his convictions. Erskine Br. at 52 (capitalization altered); see In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 147 (2d Cir. 2008). 13 Stone’s “jointly undertaken criminal activity” and “reasonably foreseeable in

connection with” that activity. Id. § 1B1.3(a)(1). We see no abuse of discretion in

the district court’s finding, which was supported by a “preponderance of the

evidence.” United States v. Ryan, 806 F.3d 691, 694 (2d Cir. 2015).

Nor did the district court abuse its discretion in tacking on a two-level

sentencing enhancement pursuant to U.S.S.G. § 2D1.1(b)(12) for Erskine’s role in

“maintain[ing] a premises for the purpose of manufacturing or distributing a

controlled substance.” Erskine App’x at 129. In reaching that conclusion, the

district court drew on witness testimony about narcotics sales Erskine had

conducted in his apartment, in addition to evidence of controlled buys

corroborating that testimony. Erskine offers nothing to suggest that this finding

was clearly erroneous, see Ryan, 806 F.3d at 694, particularly in light of the

“substantial deference” granted to a district judge “as to what testimony to credit”

at sentencing, United States v. Norman, 776 F.3d 67, 78 (2d Cir. 2015).

Erskine’s remaining procedural challenges are either foreclosed by our

precedent or belied by the record. First, Erskine concedes that his challenge to the

district court’s finding that he is a career offender is foreclosed by this Court’s

precedent. See United States v. Jones, 415 F.3d 256, 263–64 (2d Cir. 2005). Second,

14 Erskine’s argument that the district court “erroneously belie[ved] it could not

depart from [the] career offender guideline” and failed to consider relevant

downward departures, Erskine Br. at 56, is untenable given Judge Halpern’s

statement that he had “looked” at a possible basis for departing before and

“determine[d]” that such a departure was unwarranted. Erskine App’x at 164.

Our caselaw is clear that so long as the district court understood the scope of its

departure authority, its decision not to exercise such authority is generally “not

appealable.” United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005). On this record,

we cannot say that the district court procedurally erred in connection with

Erskine’s sentence.

Nor can it be said that Erskine’s sentence was substantively unreasonable.

A sentence is substantively unreasonable only if it is “shockingly high, shockingly

low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583

F.3d 108, 123 (2d Cir. 2009). And a defendant arguing substantive

unreasonableness “bears a heavy burden because” our substantive review “of a

sentence . . . is particularly deferential.” United States v. Broxmeyer, 699 F.3d 265,

289 (2d Cir. 2012).

15 Erskine first argues that the district court afforded insufficient weight to

certain “mitigating factors,” including his difficult childhood. Erskine Br. at 59.

But the district court clearly considered those factors, Erskine App’x at 160, and

the weighing of the relevant aggravating and mitigating factors “is a matter firmly

committed to [its] discretion,” Broxmeyer, 699 F.3d at 289. Erskine also asserts that

his sentence is substantively unreasonable because it is identical to the sentence

received by the “undisputed leader of Gorilla Stone,” Dwight Reid. Erskine Br. at

60. We have never held, however, that sentencing courts must “consider or

explain sentencing disparities among codefendants.” United States v. Wynn, 108

F.4th 73, 85 (2d Cir. 2024) (internal quotation marks omitted). Given the

seriousness of Erskine’s conduct, and the scope and duration of the criminal

enterprise, Erskine’s within-Guidelines sentence of 420 months was neither

shockingly high nor otherwise unsupportable as a matter of law.

II. Thomas’s Challenges to His Conviction and Sentence Are Without Merit.

A. The District Court Did Not Err in Denying Thomas’s Request to Withdraw His Plea.

Thomas, another leader of the Gorilla Stone gang, pleaded guilty to

racketeering conspiracy and possession of a firearm in furtherance of a

drug-trafficking crime. Months after pleading guilty, Thomas filed a pro se motion

16 to withdraw his guilty plea, which the district court denied.

We review “a district court’s denial of a motion to withdraw a guilty plea

for abuse of discretion and any findings of fact in connection with that decision for

clear error.” United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (internal

quotation marks omitted). A defendant may withdraw a plea only if he “can show

a fair and just reason for requesting the withdrawal,” Fed. R. Crim. P. 11(d)(2)(B),

which the defendant “bears the burden” of establishing, United States v. Doe, 537

F.3d 204, 210 (2d Cir. 2008) (internal quotation marks omitted). In assessing a

defendant’s stated reasons, a district court should consider, among other things,

“(1) the amount of time that has elapsed between the plea and motion; (2) whether

the defendant has asserted a claim of legal innocence; and (3) whether the

government would be prejudiced by a withdrawal of the plea.” Id.

Thomas’s argument that his plea was “not taken knowingly and

intelligently” is unpersuasive. Thomas Br. at 8. To begin, as the district court

correctly observed, a significant amount of time – four months – had elapsed

between Thomas’s plea and his motion to withdraw. We have recognized that

while a “swift change of heart may indicate a plea made in haste or confusion,”

the passage of months before a defendant attempts to withdraw a plea “strongly

17 supports the district court’s finding that his plea was entered voluntarily.” Doe,

537 F.3d at 213 (internal quotation marks omitted). The district court also

appropriately took account of any “claim of legal innocence,” id. at 210, noting that

Thomas had made no such “showing” in his motion to withdraw the plea, Thomas

App’x at 113. Finally, the record contradicts Thomas’s claim that his plea was not

“knowing” and “voluntary.” Thomas Br. at 15. During the course of Thomas’s

guilty plea, the district court granted him extra time so that he could re-consider

his plea with his lawyer. After that adjournment, the district court confirmed that

(i) Thomas had “enough time and opportunity” to discuss his plea with his

counsel, (ii) he was “satisfied” with counsel’s representation, (iii) he had read the

agreement and “discuss[ed] every aspect” of it with counsel, (iv) his allocution

reflected his “own words,” and (v) his plea was “knowing and voluntary.”

Thomas App’x at 163–64. This testimony carries a “strong presumption of

accuracy,” and we will not reverse where a defendant later produces “self-serving

and contradictory testimony as to whether a plea was knowingly and intelligently

made.” 4 United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001).

4 Thomas asserts for the first time on appeal that his counsel at sentencing misled him “into believing he had a realistic chance of receiving only five years of jail time.” Thomas Br. at 13. But this belated argument contradicts the transcript of the hearing, where Thomas affirmed that no one had made any “promise” to him “as to what [his] sentence w[ould] be,” Thomas App’x at 18 Because Thomas has put forth no other argument that satisfies the

“stringent” standard that he must meet to withdraw a plea, we see no reason to

disturb his conviction. United States v. Schmidt, 373 F.3d 100, 103 (2d Cir. 2004).

B. Thomas’s Sentence Was Not Substantively Unreasonable.

Thomas’s challenge to the substantive reasonableness of his sentence also

fails. At sentencing, the district court correctly calculated Thomas’s Guidelines

range, with no objection, before sentencing him to an aggregate sentence of 248

months’ imprisonment – the lowest end of the Guidelines range. Such a sentence

is well within “the range of permissible decisions,” United States v. Cavera, 550 F.3d

180, 191 (2d Cir. 2008) (internal quotation marks omitted), and cannot be deemed

“shockingly high” or “unsupportable as a matter of law,” Rigas, 583 F.3d at 123.

* * *

We have considered Erskine’s and Thomas’s remaining arguments and find

them to be without merit. Accordingly, the judgments of the district court are

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

160. And “[a] motion to withdraw a guilty plea may be denied . . . where the defendant’s allegations merely contradict the record.” United States v. Torres, 129 F.3d 710, 714 (2d Cir. 1997). 19