NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10040
Plaintiff-Appellee, D.C. No.
2:12-cr-00289-JCM-PAL-1
v.
TYRONE DAVIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 16, 2018
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District
Judge.
1. The district court did not abuse its discretion in denying Tyrone Davis’
motion to withdraw his guilty plea. The district court properly determined that
Davis did not show “a fair and just reason” for withdrawing his plea. Fed. R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Page 2 of 4
Crim. P. 11(d)(2)(B). Davis’ plea colloquy satisfied the requirements of Rule 11.
Davis’ statements during the colloquy provided a sufficient factual basis for Count
3. See Fed. R. Crim. P. 11(b)(3); United States v. Ross, 511 F.3d 1233, 1236 (9th
Cir. 2008). Although Davis initially expressed some misgivings, he eventually
acknowledged that he possessed a firearm in furtherance of a drug-trafficking
crime. Davis’ plea was also knowing, intelligent, and voluntary. See Fed. R.
Crim. P. 11(b)(2). The district judge and the lawyers provided thorough responses
to Davis’ questions and explained that he had the right to a jury trial if he did not
want to go through with the plea.
Additionally, Davis’ legal representation was adequate. As the district court
found, Davis’ lawyer did not hire a sentencing consultant because Davis insisted
on going to trial before his lawyer had time to hire one. Finally, the other factors
that Davis identifies—withdrawing his plea within a month of entering it,
maintaining his innocence for several years, the minimal prejudice that would
result if the plea were set aside—do not constitute fair and just reasons for
withdrawing his plea. See United States v. McTiernan, 546 F.3d 1160, 1167 (9th
Cir. 2008).
2. The district court properly denied Davis’ motions to suppress. The
metadata from the photographs suggests that officers may have entered Davis’
apartment before obtaining a warrant. But the district court did not clearly err in
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crediting Detective Sazer’s explanation that he never checked the timestamp on the
camera before using it and was unaware of any other users adjusting the camera
since daylight savings time. Additionally, the first search warrant was supported
by probable cause: The police had probable cause to believe that Davis had
committed a robbery, and they could reasonably have expected to find relevant
evidence in his apartment three weeks later. See United States v. Jackson, 756
F.2d 703, 705 (9th Cir. 1985). Moreover, the district court did not clearly err in
concluding that officers properly identified Davis’ address, and any misstatements
in the warrant affidavit did not undermine the probable cause determination. The
second warrant was also supported by probable cause. After observing a gun,
ammunition, drugs, and drug paraphernalia in plain view, the officers had probable
cause to conduct a second search and to seize the items. This remains true under
the circumstances here, even if the initial entry preceded the issuance of the first
search warrant by thirty minutes. See Murray v. United States, 487 U.S. 533, 542
(1988).
3. In light of our recent decision in United States v. Edling, 895 F.3d 1153
(9th Cir. 2018), we conclude that Davis’ robbery conviction under Nevada Revised
Statutes § 200.380 does not qualify as a “crime of violence” under U.S.S.G.
§ 4B1.2 as amended in 2016. Id. at 1156–58. Consequently, Davis should not
have been sentenced as a career offender. We vacate Davis’ sentence and remand
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for resentencing. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th
Cir. 2011).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
FOR RESENTENCING.