13‐3651
United States v. Allen
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
COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY
CITING TO 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 17th day of October, two thousand fourteen.
PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 13‐3651‐cr
KEVIN ALLEN, JR.,
Defendant‐Appellant.
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FOR APPELLEE: Stephan J. Baczynski, Assistant United States
Attorney, for William J. Hochul, Jr., United
States Attorney for the Western District of New
York, Buffalo, New York.
FOR DEFENDANT‐APPELLANT: Malvina Nathanson, Law Offices of Malvina
Nathanson, New York, New York.
Appeal from the United States District Court for the Western District of
New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment is AFFIRMED.
Defendant‐appellant Kevin Allen, Jr. appeals from a judgment entered on
September 17, 2013, in the United States District Court for the Western District of New
York sentencing him to 24 months of imprisonment following his guilty plea to
violating the conditions of his supervised release. On appeal, Allen argues that his
guilty plea should be vacated because his attorney purportedly misled him regarding
whether his state sentence and federal sentence would run concurrently. We assume
the partiesʹ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
On July 28, 2011, Kevin Allen was stopped by the police for driving in a
stolen car. Allen tried to flee, got into a struggle with an officer, and eventually sprayed
the officer with the officerʹs own pepper spray in an attempt to avoid arrest. He was
charged in state court with assault in the second degree in violation of New York Penal
Law § 120.05‐03, and in March 2013 pled guilty to a related charge based on the same
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incident, see N.Y. Pen. Law § 195.08. At the time of the incident, he was on supervised
release in the federal system following a conviction for possession with the intent to
distribute and distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). On July 18, 2013, while awaiting sentencing on the state charge, Allen pled
guilty to the violation of supervised release in the district court. On September 11, 2013,
the district court sentenced Allen for the supervised release violation to two yearsʹ
imprisonment and three additional years of supervised release. The district court was
advised that Allen would be sentenced in state court the next day, with the sentence to
run concurrently with the federal sentence. The next day, Allen was in fact sentenced to
a sentence of two to four years, ʺconcurrent to federal sentence.ʺ The State, however,
did not transfer Allen back to federal custody until January 22, 2014, after the state
sentence had run. Hence, the federal sentence did not begin to run until then.
Allen argues he was deprived of his right to effective assistance of counsel
in connection with his plea bargain, rendering his guilty plea invalid. According to
Allen, his attorney misled him into believing his state sentence would be concurrent
with his federal sentence, meaning that his federal time would be credited against the
state time that remained to be served beyond the period he already had spent in pre‐
trial detention. He would have received such credit, shortening his total incarceration,
if he had been allowed to serve his federal time prior to the balance of his state sentence.
Instead, however, Allen remained in state custody and was not transferred to federal
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custody until after he was paroled from his state sentence. Allen contends that he pled
guilty based on his attorneyʹs representations that Allen would receive the benefit of
concurrent sentences, but in fact, his attorney failed to secure that benefit for him.
We are unable to judge Allenʹs claim of ineffective assistance on the
current factual record. We therefore affirm the judgment of the district court without
prejudice to Allen renewing his claim in a habeas petition. Because Allenʹs federal
imprisonment might conceivably end before habeas proceedings could be completed,
we also note the governmentʹs suggestion that Allen ʺpetition the Bureau of Prisons to
credit his federal sentence for the period he spent in State custody after being finally
sentenced on the State charge.ʺ Appellee Br. at 10.
For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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