United States v. Juan Done , 589 F. App'x 49 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-1023
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UNITED STATES OF AMERICA
v.
JUAN CARLOS DONE,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-09-cr-00601-001)
District Judge: Honorable Jose L. Linares
______________
Submitted Pursuant to L.A.R. 34.1(a)
March 3, 2014
Before: McKEE, Chief Judge, AMBRO and JORDAN, Circuit Judges
(Opinion Filed: January 21, 2015)
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OPINION
__________
McKEE, Chief Judge.
Juan Carlos Done appeals the judgment of sentence that was imposed following
his guilty plea. For the reasons that follow, we will affirm.1
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Done argues that the district court erred by: (i) denying the motion to withdraw the
guilty plea; (ii) failing to dismiss because of an alleged violation of his constitutional
right to a speedy trial; and (iii) denying his severance motion. Each claim is meritless.
A. Motion to Withdraw Guilty Plea
We will reverse the district court’s denial of a motion to withdraw a guilty plea
only for abuse of discretion.2 We consider the following factors: “(1) whether the
defendant asserts [his] innocence; (2) whether the government would be prejudiced by
the withdrawal; and (3) the strength of the defendant’s reason to withdraw the plea.”3
Done contends that the Government failed to establish a factual basis for his guilty plea.
The district court acknowledged Done’s assertion of innocence, but held that it
lacked factual support.4 Accordingly, the court concluded that his claim of innocence
was “an inadequate grounds upon which to premise a motion to withdraw a guilty plea.”5
Done also argued that he “demonstrated a fair and just reason for withdrawing his guilty
plea” because there was confusion regarding the underlying charges that he was pleading
guilty to because of his counsel’s ineffective assistance.6 The district court also
accurately and appropriately assessed the weight of Done’s claim and found that it was
1
This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001).
3
Id.
4
App. 203.
5
Id.
6
Id. at 204.
2
insufficient to sustain his burden of proving ineffective assistance of counsel.7 Given
Done’s failure “either to make a showing of factual innocence or establish a sufficiently
strong reason for withdrawing his guilty plea,” the court found it unnecessary to consider
the prejudice the Government would suffer.8 We agree.
“A simple shift in defense tactics, a change of mind, or the fear of punishment are
not adequate reasons to force the government to incur the expense, difficulty and risk of
trying a defendant, who has already acknowledged his guilt before the court.”9 Although
Done now insists that the Rule 11 hearing was not sufficient to allow the district court to
accept his plea, our examination of the transcript of that hearing convinces us to the
contrary. The record reflects an extensive colloquy between Done’s former attorney,
Rosen, and the Government.10 Accordingly, the district court did not abuse its discretion
in denying the motion to withdraw the guilty plea.11
B. Appellate Waiver
7
Id. at 206.
8
Id.
9
United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by statute on other
grounds as stated in United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).
10
Ohio App. 290.
11
Done also argues that the Government breached the plea agreement when it attempted
to deny the two-point reduction for acceptance of responsibility pursuant to United States
Sentencing Guidelines Section 3E1.1(a). However, Done overlooks the language of the
plea agreement—specifically in Schedule A, paragraph 7, the Government stated that the
two-point reduction was subject to an acceptance of responsibility that “continues
through the date of sentencing.” Supp. App. 7. Done moved to withdraw his guilty plea
prior to sentencing which prompted the Government to deny this two-point deduction.
Ultimately, the district court did not accept the Government’s argument and kept Done’s
total Guidelines offense level at 26.
3
Done contends that the district court erred by refusing to dismiss the prosecution
with prejudice based on an alleged speedy trial violation and by denying his motion for
severance. The Government correctly notes that these challenges are now barred by
terms of the appellate waiver contained in Done’s plea agreement.
The plea agreement provided:
Juan C. Done knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral
attack, or any other writ or motion, including but not limited to an appeal
under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing court if that sentence
falls within or below the Guidelines range that results from a total
Guidelines offense level of 26.12
As the Government correctly notes, if Done wanted to preserve these claims, he
should have attempted to negotiate a conditional guilty plea rather than entering an
unconditional guilty plea.13 Since the arguments Done is making are not jurisdictional,
they were clearly swept aside by his unconditional plea.14
II.
For the reasons expressed above, we will affirm the denial of the motion to
withdraw the guilty plea and the sentence of the district court.
12
Supp. App. 8.
13
See Appellee’s Br. at 28 (citing United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989)
and Fed. R. Crim. P. 11(a)(2).
14
See United States v. Stevens, 487 f.3d 232, 238 (5th Cir. 2007).
4