NOT FOR PUBLICATION FILED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 Page 3 of 4

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 Page 4 of 4

for resentencing. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th

Cir. 2011).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

FOR RESENTENCING.