15-2019
     United States v. Melville

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of December, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges,
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-2019
16
17       HUGNEL ANDRE, AKA HUGZ,
18                Defendant
19
20       COURTNEY MELVILLE, AKA TRIX,
21                Defendant-Appellant
22
23       - - - - - - - - - - - - - - - - - - - -X
24
25
26       FOR APPELLANT:                        ANTHONY L. RICCO, New York, New
27                                             York (Steven Legon, on the
28                                             brief).

                                                  1
 1
 2   FOR APPELLEE:                 JO ANN M. NAVICKAS, for Robert
 3                                 L. Capers, United States
 4                                 Attorney for the Eastern
 5                                 District of New York (Kevin
 6                                 Trowel, on the brief).
 7
 8       Appeal from a judgment of the United States District

 9   Court for the Eastern District of New York (Ross, J.).

10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the judgment of the district court be

12   AFFIRMED.

13       Courtney Melville appeals from the judgment of the

14   United States District Court for the Eastern District of New

15   York (Ross, J.) denying his motion to withdraw his guilty

16   plea to an 18 U.S.C. § 924(c) count and sentencing him to

17   108 months of imprisonment.    We assume the parties’

18   familiarity with the underlying facts, the procedural

19   history, and the issues presented for review. We affirm

20   because Melville’s plea allocution was sufficient to

21   establish aiding and abetting liability for the § 924(c)

22   count and because a waiver bars his appeal of the sentence.

23       Melville pleaded guilty to one count of Hobbs Act

24   robbery and one count of using or carrying a firearm in

25   connection with that robbery.       18 U.S.C. § 1951 (Hobbs Act);

26   18 U.S.C. § 924(c) (use of a weapon).      The § 924(c) count in

27   the indictment charged him both with the substantive offense


                                     2
 1   and with aiding and abetting the offense pursuant to 18

 2   U.S.C. § 2.   He was also charged with (but did not plead

 3   guilty to) one count of conspiracy to commit the robbery.

 4       After pleading guilty, Melville moved to withdraw his

 5   plea to the § 924(c) count, arguing that the facts adduced

 6   at the allocution were insufficient to establish his guilt.

 7   The undisputed facts elicited at Melville’s allocution were:

 8   1) that Melville did not carry a gun on his person in

 9   connection with the robbery; and 2) that one of Melville’s

10   fellow robbers did carry a gun in connection with the

11   robbery.   Melville argued that he could not be held

12   criminally liable for the use of a gun by one of his fellow

13   robbers under a Pinkerton theory because he had neither

14   pleaded guilty to nor been convicted of a conspiracy charge.

15   See Pinkerton v. United States, 328 U.S. 640 (1946).    The

16   district court held that he could be convicted under

17   Pinkerton despite the lack of a conspiracy conviction or

18   plea. The motion to withdraw the guilty plea was accordingly

19   denied.

20       Both parties observe that the Pinkerton question

21   presented is a novel one in the Second Circuit,1 but we need


         1
          The question would seem to be answered in Pacelli v.
     United States, 588 F.2d 360, 367 (2d Cir. 1978) (“[T]he
     Pinkerton rationale makes all partners in the enterprise
     responsible for the acts of the others in carrying it out,
                                   3
 1   not reach it because we can affirm on simpler grounds.

 2   United States v. Cramer, 777 F.3d 597, 603 (2d Cir. 2015)

 3   (“[W]e are free to affirm a decision on any grounds

 4   supported in the record, even if it is not one on which the

 5   trial court relied.”) (citations omitted).   Melville pleaded

 6   guilty to a § 924(c) count in the indictment that expressly

 7   charged him under the aiding and abetting statute, and his

 8   allocution established that he met the two requirements for

 9   aiding and abetting a § 924(c) violation.    First, he took an

10   affirmative act in furtherance of the crime by participating

11   in the robbery itself.   Rosemond v. United States, 134 S.

12   Ct. 1240, 1247 (2014) (holding that participation in the

13   underlying crime is sufficient to fulfill the act

14   requirement for aiding and abetting a § 924(c) violation).

15   Second, he had advance knowledge that one his fellow robbers

16   would carry a gun during the robbery.   Id. at 1249.   Because

17   the plea allocution provided the necessary factual predicate

18   for Melville’s liability, the district court did not err in

19   denying his motion to withdraw the guilty plea.   See United

20   States v. Rosen, 409 F.3d 535, 546 (2d Cir. 2005).

21       Melville also challenges his sentence of 108 months;

22   but his plea agreement waived any right to appeal a sentence



     whether a conspiracy is charged or not.”) (emphasis added).
                                   4
 1   of 117 months or less.   That waiver is valid and bars his

 2   appeal.   United States v. Pearson, 570 F.3d 480, 485 (2d

 3   Cir. 2009) (per curiam).

 4       For the foregoing reasons, and finding no merit in

 5   Melville’s other arguments, we hereby AFFIRM the judgment of

 6   the district court.

 7
 8
 9                               FOR THE COURT:
10                               CATHERINE O’HAGAN WOLFE, CLERK
11




                                   5