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