United States v. Lisi, 14-1976-cr (L)

Defendant Brandon Lisi pleaded guilty in the SDNY and later moved to withdraw his plea, alleging conflicts of interest by his trial counsel (Randy Zelin) and ineffective assistance.
After the plea, Lisi’s counsel was replaced by David Touger, who submitted an unsworn statement alleging counsel conflicts but did not provide supporting affidavit or evidence.
The Government had made a pre-plea statement that it was willing to meet with defense counsel about future charging decisions, and represented that this commitment was not part of the plea agreement.
The District Court denied Lisi’s motion to withdraw his guilty plea and denied an evidentiary hearing, finding the new counsel’s contentions inconsistent with the case history and partly conclusory.
Lisi was sentenced principally to 78 months’ imprisonment and specified forfeiture/restitution amounts; his plea agreement contained an appellate waiver barring certain challenges.
On appeal to the Second Circuit, the court affirmed in part and dismissed in part: it upheld the denial of the withdrawal motion and dismissed sentencing-related challenges as barred by the appellate waiver.

Issue	Plaintiff's Argument (Lisi)	Defendant's Argument (Government)	Held
Whether Lisi’s guilty plea was involuntary due to counsel’s conflict of interest	Zelin had an actual or per se conflict that made the plea involuntary; Touger’s unsworn statement supports withdrawal	Touger’s unsworn, vague allegations lacked affidavit/evidence; record does not show conflict	No substantial question shown; plea not rendered involuntary; motion denied
Whether the Government’s pre-plea commitment induced the guilty plea	Lisi contends Government’s commitment to consult about future charges induced his plea	Government explicitly stated that its commitment was not part of the plea agreement	Commitment did not induce the plea; plea stands
Whether defense counsel gave incorrect Sentencing Guidelines advice that prejudiced the plea decision	Lisi argues Zelin’s Guidelines advice was incorrect and affected his decision to plead	Zelin’s advice was not incorrect under U.S.S.G. §2B1.1 comment; even if imperfect, no showing it affected plea	Court found advice not incorrect and, in any event, no prejudice shown to affect voluntariness
Whether Lisi may appeal his sentence despite an appellate waiver in the plea agreement	Lisi argues the appellate waiver is unenforceable	Government invokes the written and colloquially acknowledged waiver barring appeals within specified ranges	Appeal of sentencing issues dismissed under the valid appellate waiver; plain-error review found no exception

United States v. Arteca, 411 F.3d 315 (2d Cir. 2005) (standard for showing plea involuntariness)
United States v. Gonzalez, 647 F.3d 41 (2d Cir. 2011) (district court discretion re: hearings on plea-withdrawal motions)
United States v. Arevalo, 628 F.3d 93 (2d Cir. 2010) (enforceability of appellate waivers)
United States v. Cook, 722 F.3d 477 (2d Cir. 2013) (plain-error review of unpreserved waiver challenges)
United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000) (exceptions to validity of appeal waivers are narrowly circumscribed)
Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) (ineffective-assistance claims ordinarily brought under 28 U.S.C. § 2255 because they often require evidence outside the direct-appeal record)