United States v. Kenneth James , 928 F.3d 247 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2569
_____________
UNITED STATES OF AMERICA
v.
KENNETH JAMES,
Appellant
_______________
On Appeal from the District Court of the
Virgin Islands
(D.C. No. 3-17-cr-0040-001)
District Judge: Hon. Curtis V. Gomez
_______________
Argued
April 9, 2019
Before: SMITH, Chief Judge, JORDAN and RENDELL,
Circuit Judges.
(Filed: June 27, 2019)
_______________
Joseph A. DiRuzzo, III
Daniel Lader [ARGUED]
DiRuzzo & Company
401 East Las Olas Boulevard
Suite 1400
Ft. Lauderdale, FL 33301
Counsel for Appellant
Melissa Ortiz
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820
Sigrid M. Tejo-Sprotte [ARGUED]
Office of United States Attorney
5500 Veterans Drive
Suite 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Kenneth James appeals the denial of his motion to
withdraw his guilty plea. He argues that the District Court of
the Virgin Islands erred as a matter of law and abused its
discretion in declining to grant the motion. We disagree and
will affirm.
2
I. BACKGROUND
James arranged to sell cocaine to someone who turned
out to be a confidential informant of the Drug Enforcement
Agency (“DEA”). After several phone calls and
conversations between James and the informant, James
brought a bag containing 12 kilograms of cocaine to a hotel
room where the informant was staying. James proceeded to
negotiate a per-kilo price with the informant, settling on
$13,500, and sold him the contents of the bag. DEA agents
immediately arrived on the scene, seized the bag containing
the cocaine, and arrested James. As far as criminal records
show, that was his first encounter with the justice system.
The government filed a two-count information
charging James in Count I with conspiracy to distribute
narcotics, in violation of 21 U.S.C. § 846, and in Count II
with possession with intent to distribute narcotics, in violation
of 21 U.S.C. § 841(a)(1). He initially pled not guilty. Four
months later, however, he made a motion to change his plea.
Pursuant to a plea agreement, he sought to plead guilty to
Count I, which specifically charged a “conspir[acy] to possess
with intent to distribute more than five kilograms of
cocaine[.]” (App. at 34.)
The District Court convened a change-of-plea hearing
and asked James about his education level. He responded that
he had completed the third grade and that he could read and
write in English. The Court confirmed that James had an
opportunity to have the documents associated with the change
of plea explained to him and that he was satisfied with the
representation provided by his attorney, David Cattie. The
3
Court then confirmed that no one had made any promises or
threats to prompt James to change his plea and that he was
doing so of his own free will. The Court also explained the
charges and the possible penalties for the offenses, as well as
James’s right to a trial and the rights he would have if he went
to trial. At each step, James said he understood.
The Court next noted that, as part of the plea
agreement, James was “agree[ing] to waive [his] right to
appeal any sentence imposed by the Court up to the statutory
maximum on any ground whatever … [and his] right to
petition [for post-conviction relief] under Title 28 US Code
Section 2255, with the exception of a claim of ineffective
assistance of counsel[.]” (App. at 59.) James again said he
understood.
To establish the factual foundation for the guilty plea,
the Court asked the government to recite what it would prove
if the case were to proceed to trial. The Assistant United
States Attorney stated that
the defendant, Kenneth James, arranged with
individuals unknown, to provide approximately
12 kilograms of cocaine to a DEA confidential
source. After several phone calls and
conversations between Kenneth James and the
confidential source, Kenneth James arrived at
the hotel where the confidential source was
staying, entered the room carrying a bag that
contained approximately 12 kilograms of
cocaine, which Kenneth James then proceeded
to sell to the confidential source. Kenneth
James negotiated to sell each kilo of cocaine to
4
the confidential source for $13,500. After
Kenneth James entered the hotel room, and the
confidential source verified the cocaine was
indeed in the bag, DEA agents arrived on scene
and recovered the bag containing the 12 bricks
of cocaine.
(App. at 60-61.) James agreed that the government’s
statement of facts was “true and accurate,” and he entered a
plea of guilty, which the Court accepted. (App. at 63.)
Several months later, but before he was sentenced,
James filed a pro se motion captioned “motion to dismiss
counsel based upon ineffectiveness of counsel[.]” (App. at
49.) In it, he asserted his innocence and provided three
reasons to explain why he had pled guilty to a crime he was
now saying he did not commit. First, he said that he was
placed “under Duress to force [him] to take a plea of
something[] that was never investigated in [his] favor.” (App.
at 49.) He claimed that Cattie “forced [him] to tell [federal
agents] that [he was] responsib[le] for a bag [of cocaine] that
[wasn’t his.]” (App. at 50.) According to James, he pled
guilty out of fear because “Cattie told [him] that … the
[j]udge and [j]ury would not believe [him] … because the
[j]udge supports corruption[.]” 1 (App. at 49-50.) Second,
1
More particularly, James asserted that Cattie made
several misrepresentations regarding the District Court,
including telling James “that [he] need[ed] to take a plea
because [the Judge] … ‘supports corruption’”; that “the Judge
system in St. Thomas ‘support corruption’ and the people in
these high positions are ‘racist’”; and “that one of the reasons
why the Judge and Jury wouldn’t believe [him] is because the
5
James stated that Cattie “never took the time to explain [to
him] in detail about the plea agreement” and that he did not
understand the plea agreement because his “educational level
is very poor[,] to the point that [he] can’t read or comprehend
to a level where [he could] trust [Cattie.]” (App. at 49.)
Finally, James claimed that no investigation had been made to
absolve him because Cattie had “already proven [him] guilty
before any investigation deeply into this case.” (App. at 49.)
Given James’s allegations, Cattie filed a motion to
withdraw as his attorney, which was granted. Joseph
DiRuzzo was then appointed to represent James and promptly
moved to withdraw the guilty plea. In that motion, for the
first time, James argued that “he was … entrapped by [a]
confidential informant.” (App. at 67.)
The District Court denied the withdrawal motion,
concluding that “James failed to meaningfully assert his
innocence or provide an adequate reason to withdraw his
guilty plea[.]” (App. at 14.) The Court also stated that
“[a]ssertions of mere legal innocence [are] insufficient to
justify the withdrawal of a guilty plea; proof of factual
innocence is required.” (App. at 8 (second alteration in
original) (quoting United States v. Monac, 120 F. App’x 924,
927 (3d Cir. 2005)) (internal quotation marks omitted).)
Thus, the District Court ruled that James could not withdraw
his guilty plea because “an entrapment defense is a claim of
Judge supports corruption.” (App. at 49-50.) James also
stated that Cattie told him that he “h[ad] to sign the plea
because [the new prosecutor on St. Thomas] wouldn’t give
[him] a [second] chance.” (App. at 49.)
6
legal innocence, not factual innocence[,]” (App. at 9,) and
James had failed to assert his factual innocence. The Court
went on, however, to note that, “even if James’s assertion of
legal innocence were sufficient, ‘[b]ald assertions of
innocence are insufficient to permit a defendant to withdraw
his guilty plea[,]’” and “James ha[d] not provided the Court
with any details on how he was entrapped[.]” (App. at 10
(first alteration in original).)
James was sentenced to 78 months’ imprisonment, to
be followed by five years of supervised release, with four
hundred hours of community service, and a special
assessment of $100. He timely appealed.
II. DISCUSSION 2
A. The Appellate Waiver
As already noted, James’s plea agreement included a
waiver of appellate rights. Because a valid waiver ordinarily
prevents us from reaching the merits of an appeal, “we review
the validity of the waiver provision and plea agreement first.”
United States v. Wilson, 429 F.3d 455, 457 (3d Cir. 2005).
A defendant is free to waive his statutory right to
appeal. United States v. Khattak, 273 F.3d 557, 561 (3d Cir.
2001). Such a waiver does not deprive us of subject matter
jurisdiction, but, when the waiver is valid, “we will not
exercise that jurisdiction to review the merits of [the
2
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and 48 U.S.C. § 1612. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
7
defendant’s appeal].” United States v. Gwinnett, 483 F.3d
200, 203 (3d Cir. 2007). Typically, instead of dismissing the
appeal, “we affirm[] the judgment of the district court.” Id. at
202. The government contends that we should do so here.
This, however, is not the typical case. Here, “the defendant
knowingly waive[d] the right to appeal any sentence” (App.
at 39), but the waiver – crafted by the government – does not
state that the defendant knowingly waived the right to appeal
his conviction. “[W]aivers of appeals should be strictly
construed.” Khattak, 273 F.3d at 562. Thus, the waiver at
issue, according to its terms, does not bar James’s appeal, see
United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)
(per curiam) (noting that a waiver that only applies to an
appeal of the defendant’s “sentence” does not bar an appeal
of a denial of a motion to withdraw a guilty plea), and we
proceed to the merits.
B. James’s Request to Withdraw His Guilty
Plea
“Once accepted, a guilty plea may not automatically be
withdrawn at the defendant’s whim.” United States v. Brown,
250 F.3d 811, 815 (3d Cir. 2001). Instead, a defendant may
withdraw a plea of guilty before sentencing if he “can show a
fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). To determine if there has been such a
showing, “[a] district court must consider three factors … (1)
whether the defendant asserts his innocence; (2) the strength
of the defendant’s reasons for withdrawing the plea; and (3)
whether the government would be prejudiced by the
withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d
Cir. 2003). The burden of demonstrating those factors “is
substantial” and “falls on the defendant[.]” Id. Whether to
8
grant a motion to withdraw a guilty plea lies within the
discretion of the district court. Id. We will not disturb that
exercise of discretion unless “no reasonable person would
adopt the district court’s view.” United States v. Steiner, 847
F.3d 103, 110 (3d Cir. 2017) (citation omitted).
James challenges on two bases the District Court’s
decision to deny his motion to withdraw his guilty plea. First,
he says the Court erred in declaring that a claim of legal
innocence is never sufficient to support withdrawal of a guilty
plea. As James sees it, an entrapment defense, while not
involving factual innocence, can still be a sufficient basis for
withdrawal. Second, he says that the District Court abused its
discretion in weighing the withdrawal factors. We address
each argument in turn.
1. James’s Claims of Innocence
a) Legal innocence can support a
claim of innocence.
Looking first at James’s argument that the District
Court erred in determining that entrapment can never be a
sufficient claim of innocence to support withdrawal, he is
quite right. Legal innocence alone can support withdrawal of
a guilty plea. As we stated in United States v. Jones, the
relevant inquiry is “whether the defendant asserts his
innocence[.]” 336 F.3d at 252. Innocence has a broader
meaning than factual innocence. It denotes being “[f]ree
from guilt; free from legal fault[,]” which, by definition,
encompasses being legally excused from any culpability. See
Innocent, Black’s Law Dictionary 804 (10th ed. 2014)
9
(defining the term). In short, legal innocence counts as
innocence.
Eight of our sister circuits have held that a claim of
legal innocence can support the withdrawal of a guilty plea. 3
Only one, the Fifth Circuit, has taken a contrary view. 4 The
Advisory Committee’s notes to the 1983 amendments to the
Federal Rules of Criminal Procedure likewise support the
view that legal innocence can sustain a guilty plea
withdrawal. When the Rules were amended to require that
the defendant provide a fair and just reason for withdrawal,
the Advisory Committee said that “[w]hether the movant has
asserted his legal innocence is an important factor to be
weighed[.]” Fed. R. Crim. P. 32 Advisory Committee note to
3
United States v. Barlow, 811 F.3d 133, 135 n.1 (4th
Cir. 2015); United States v. Maxwell, 498 F.3d 799, 801 (8th
Cir. 2007); United States v. Hamilton, 510 F.3d 1209, 1214
(10th Cir. 2007); United States v. Negron-Narvaez, 403 F.3d
33, 36 (1st Cir. 2005); United States v. Rosen, 409 F.3d 535,
546 (2d Cir. 2005); United States v. Ortega-Ascanio, 376
F.3d 879, 883-84, 887 (9th Cir. 2004); United States v. Cray,
47 F.3d 1203, 1206, 1209 (D.C. Cir. 1995); United States v.
Groll, 992 F.2d 755, 758 (7th Cir. 1993).
4
See United States v. Lord, 915 F.3d 1009, 1014 (5th
Cir. 2019) (finding that because defendant’s “arguments do
not go to their factual innocence” and instead “amount to an
assertion of their legal innocence,” they are an insufficient
ground to withdraw a plea); see also id. (“an assertion of
innocence [i]s not supported by claims of ‘legal innocence
based on insanity and entrapment’” (citing United States v.
McKnight, 570 F.3d 641, 649 (5th Cir. 2009))).
10
1983 amendments. Thus, the weight of authority clearly
supports treating a claim of legal innocence as an adequate
assertion of innocence.
So, in our view, does sound logic. It is axiomatic that
a defendant who has a complete affirmative defense, such as
self-defense or entrapment, is not legally culpable. See, e.g.,
United States v. Scott, 437 U.S. 82, 98 (1978) (stating that a
finding of entrapment “necessarily establish[es] the criminal
defendant’s lack of criminal culpability” (citation omitted);
New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18, 24 (1891)
(“If the injury was done by the defendant in justifiable self-
defense, he can n[ot] be punished criminally … . Because the
act was lawful, he is wholly relieved from responsibility for
its consequences.”). Likewise, a juvenile may be shielded
from criminal liability because of his status as a juvenile. See
21 U.S.C. § 861(a) (making it unlawful only “for any person
at least eighteen years of age to knowingly and intentionally -
- employ … a person under eighteen years of age” in drug
operations); see also, e.g., Wash. Rev. Code § 9A.04.050
(“Children under the age of eight years are incapable of
committing crime.”). If a defendant is not legally culpable, it
stands to reason that he should be able to withdraw his guilty
plea before sentencing because he is exempt from any
punishment for the alleged acts constituting the crime,
regardless of whether he committed them.
Despite that, the District Court relied on our decision
in United States v. Brown, 250 F.3d at 818, to conclude that a
claim of legal innocence is insufficient to permit a defendant
11
to withdraw his guilty plea. 5 More particularly, it relied on
Brown’s statement that, “[i]n assessing a defendant’s claim of
‘legal innocence’ for purposes of withdrawal of a guilty plea,
[courts] must first examine whether the defendant has
asserted his or her factual innocence.” Id. In Brown, we
placed “legal innocence” in quotes because we were repeating
a characterization by the defendant of a position she had
advanced. Id. at 814, 818. The defendant asserted that she
was “legally innocent” because, without certain evidence, the
government would be unable to prove its case against her
beyond a reasonable doubt. Id. at 818. But she did not
present any evidence to support the contention that she was
innocent in fact. Id. Thus, Brown did not truly address an
assertion of innocence – either legal or factual – but rather an
assertion that there was insufficient evidence to convict. 6
That is an entirely different argument and is certainly not a
5
The Court also cited United States v. Monac, 120 F.
App’x at 927, and United States v. Kenley, 299 F. App’x 184,
186 (3d Cir. 2008). It is contrary to our Internal Operating
Procedures, however, to treat non-precedential opinions as
having any precedential effect. See Third Circuit Internal
Operating Procedure 5.7 (indicating that non-precedential
“opinions are not regarded as precedents that bind the court
because they do not circulate to the full court before filing”).
6
We acknowledge that the Tenth Circuit considered
Brown as supporting the idea that factual innocence is
required, while reaching the opposite conclusion as a Circuit.
Hamilton, 510 F.3d at 1214-15. We are clarifying the import
of Brown now.
12
claim of legal innocence. There is a world of difference
between saying, on the one hand, “I did it, but the law says
I’m not culpable,” and, on the other, “I may have done it, but
you can’t prove it.”
A defense of entrapment is of the former variety and
can be a proper basis for the withdrawal of a guilty plea. It
speaks directly to the legal culpability of the defendant.
United States v. Russell, 411 U.S. 423, 435 (1973). Not
surprisingly, then, several courts of appeals have treated a
well-founded entrapment defense as a sufficient claim of
innocence. See, e.g., United States v. Berkeley, 567 F.3d 703,
708 n.2 (D.C. Cir. 2009) (“[A]n entrapment defense may
form the basis for a viable claim of innocence[.]”); United
States v. Groll, 992 F.2d 755, 759 n.5 (7th Cir. 1993) (“A
defendant raising an entrapment defense to withdraw her
guilty plea can, given the nature of the defense, admit to the
conduct supporting the alleged offense and yet still claim that
she is legally innocent of the crime.”); see also United States
v. Chant, 201 F.3d 445, 1999 WL 1021460, at *3 (9th Cir.
1999) (table) (referring to an entrapment defense as “[a] claim
of innocence, supported by evidence not available at the time
of the entry of the plea, [which] might be a fair and just
reason for allowing withdrawal of a guilty plea”).
To say that an entrapment defense can support
withdrawal, however, “is not to say … that the mere assertion
of a legally cognizable defense is always a sufficient
condition for securing withdrawal of a plea.” United States v.
Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). On the contrary,
“[b]ald assertions of innocence are insufficient to permit a
defendant to withdraw his guilty plea.” Jones, 336 F.3d at
13
252. Instead, “[a]ssertions of innocence must be buttressed
by facts in the record that support a claimed defense.”
Brown, 250 F.3d at 818 (citation omitted). In other words,
“the mere assertion of a legal defense is insufficient; the
defendant must present a credible claim of legal innocence.”
Hamilton, 510 F.3d at 1214; see also United States v.
Thompson-Riviere, 561 F.3d 345, 353 (4th Cir. 2009) (noting
that the defendant’s burden “is to credibly assert his legal
innocence: that is, to present evidence that (1) has the ‘quality
or power of inspiring belief,’ and (2) tends to ‘defeat the
elements in the government’s prima facie case’ or to ‘make
out a successful affirmative defense’” (citations omitted)).
Here, the District Court held that it was dealing with
just such an unsupported claim. It said that, “even if James’s
assertion of legal innocence[, entrapment,] were sufficient,
… . James ha[d] not provided the Court with any details on
how he was entrapped, let alone pointed to any evidence of
the alleged entrapment.” (App. at 10.) That is an adequate
foundation on which to conclude that James’s claim of legal
innocence was insufficient to be a ground for withdrawal of
his guilty plea, making the District Court’s earlier legal error
harmless.
b) James’s claims of innocence are
insufficient.
James disputes that the District Court’s conclusion in
that regard and says the Court abused its discretion in denying
his withdrawal motion since he “plausibly claimed his
innocence (both factual and legal) and … proffered legitimate
reasons explaining why he first pled guilty and then made the
14
request to withdraw it.” (Opening Br. at 5.) We have a very
different understanding of the record and his arguments.
James’s claim of entrapment was a “[b]ald assertion[]
of innocence” that was not “buttressed by facts in the record
that support [his] claimed defense.” Jones, 336 F.3d at 252(citation omitted). The defense of entrapment requires proof
of two elements: “[1] government inducement of the crime,
and [2] a lack of predisposition on the part of the defendant to
engage in the criminal conduct.” Matthews v. United States,
485 U.S. 58, 63 (1988). James argues that he sufficiently
alleged inducement because of “the involvement of the
confidential informant” and that he showed a lack of
predisposition because of his “complete lack of any criminal
history[.]” (Opening Br. at 11.) It is a stretch to read his
filings in the District Court as alleging both elements, but we
will assume for the sake of discussion that he did. The
question, then, is whether he provided any evidentiary
support.
James says that he showed inducement because it was
the informant who put together the drug deal, despite James’s
“repeated and consistent claims that he did not want to be
involved[.]” (Opening Br. at 16.) As evidence of reluctance,
he cites to the plea colloquy, which notes that “several phone
calls and conversations [occurred] between Kenneth James
and the confidential source[.]” (App. at 60.) That’s the
entirety of his proof, beyond his self-serving statements. But
the fact that several calls took place does not prove that those
calls were needed to overcome any reluctance on James’s
part. And, as we explained in United States v. Wright, “mere
solicitation by the government, without more, is not
‘inducement.’” 921 F.2d 42, 45 (3d Cir. 1990). To be
15
inducement, the government’s actions must have
overpowered the defendant. Cf. Groll, 992 F.2d at 759(noting that “three phone calls urging a defendant to buy
cocaine after an initial refusal were not sufficient
inducement” but that an informant calling a defendant every
day for a month raised a colorable claim). At most, James
has provided evidence that repeated calls were made. The
content of those calls is simply not in evidence. The District
Court thus did not abuse its discretion in concluding that
James had not given sufficient support for a defense of
entrapment. See, e.g., United States v. Hanson, 339 F.3d 983,
988 (D.C. Cir. 2003) (rejecting an “extremely weak[,]”
though not completely unviable, entrapment defense as a
basis for asserting innocence).
Since James did not provide a meaningful basis to
conclude that the government induced him to commit the
crime to which he pled guilty, it does not matter whether he
showed a lack of predisposition to commit the crime. The
District Court was within its discretion in rejecting his
entrapment defense as a basis for withdrawing his plea.
James also takes a pass at what one might interpret as a
claim of factual innocence. He contends that he could not
have had the requisite “intent” to distribute narcotics because
the bag containing the drugs was not his and “he did not
know what was in the bag[] of drugs until he was arrested[.]”
(Opening Br. at 5.) But, in all of this it must be remembered
that James admitted under oath to the underlying facts of the
offense during the plea colloquy and made no mention of
16
inducement then. 7 His factual admissions “carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63,
74 (1977). Thus, given his earlier admissions, including that
he negotiated the price for the cocaine on a per-kilo basis,
there was no abuse of discretion in rejecting his late and lame
protestations of factual innocence, if he actually presented
them to the District Court.
2. Weighing the Remaining Withdrawal
Factors
The second factor in assessing whether a guilty plea
can be withdrawn is whether the defendant has proffered
“sufficient reasons to explain why contradictory positions
were taken before the district court and why permission
should be given to withdraw the guilty plea and reclaim the
right to trial.” Jones, 336 F.3d at 253 (citation omitted).
James gives three reasons why he should have been allowed
to withdraw his plea. First, he says the plea was not
voluntary since “he felt threatened under duress to accept a
plea that he would not have accepted[.]” (Opening Br. at 8.)
Second, he claims the plea was not entered into knowingly,
that it was not an “intelligent act[] done with sufficient
awareness of the relevant circumstances and likely
consequences.” (Opening Br. at 6 (quoting Brady v. United
7
During the plea colloquy, James agreed that the
government could prove certain facts beyond a reasonable
doubt, including that “James[] arranged with individuals
unknown, to provide approximately 12 kilograms of cocaine
to a DEA confidential source” and that “James negotiated to
sell each kilo of cocaine to the confidential source for
$13,500.” (App. at 60-61.)
17
States, 397 U.S. 742, 748 (1970)).) Third, he claims that his
counsel was ineffective. The record does not support any of
those assertions.
As to his first argument, that he was under duress
“because his attorney told him that the judge system in St.
Thomas is corrupt and the judge and jury would not believe
his defense[]” (Opening Br. at 8), James has offered
absolutely no evidence of corruption, nor any rational reason
why he would have believed such a tale, even if it were told.
In fact, as the District Court stated, “it seems that a reasonable
defendant, believing he faced sentencing at the hands of a
corrupt and biased judge, would be hesitant to forgo the
protections afforded by a jury trial.” (App at 13.)
The record is not simply bereft of anything supporting
James’s assertions about what Cattie said; it is plainly
contrary to those assertions. As in Jones, where the
defendant later contended his counsel made a promise that
induced him to plead guilty, the District Court here “engaged
[James] in a lengthy and extensive colloquy … during which
the Court asked [him] whether anyone had made any threat or
promise or assurance of any kind to convince him to plead
guilty. He replied in the negative.” 336 F.3d at 254. Indeed,
James affirmed that he was “entering th[e] plea of [his] own
free will.” (App. at 58.) Having pointed to nothing that
undermines those statements, James cannot credibly argue
that the District Court abused its discretion in concluding that
his late-breaking and unsupported assertion of duress did not
favor granting the motion for withdrawal. 8 Cf. United States
8
Nonetheless, James contends that, “[i]n prior
decisions, this Court has considered the accused’s familiarity
18
v. Fazio, 795 F.3d 421, 426 (3d Cir. 2015) (noting that such
statements at a plea colloquy mean that an “appellate waiver
must … be enforced unless we identify the unusual
circumstance of an error amounting to a miscarriage of
justice” (citation omitted)).
James next argues that his plea was not a knowing,
“intelligent choice among the alternative courses of action
open to the defendant.” Jones, 336 F.3d at 253 (citation
omitted). He advances two reasons. First, he makes the
bootstrap argument that, if it is true that the system in St.
Thomas is not corrupt, then “James made his plea without
sufficient awareness of the fair and impartial process he
would receive presenting his defense[.]” (Opening Br. at 8.)
Second, he says that, because of his “lack of education” he
was unable to make an informed decision about the
alternative courses of action available to him. (Opening Br.
at 8.)
Both of those arguments fail because James’s
statements during the change-of-plea hearing indicate that his
plea was indeed knowing, voluntary, and fully informed. As
with the justice system in determining whether a plea was
made voluntarily[.]” (Opening Br. at 8 (citing Jones, 336
F.3d at 254-55).) Since this was James’s “first touch with the
judicial system[,]” (App. at 88,) he argues we should find his
plea involuntary, given the claims he has asserted. But
simply because we consider the accused’s familiarity with the
criminal justice system does not make that consideration
dispositive.
19
the District Court observed, any allegation that James’s plea
was not entered into knowingly and voluntarily is “flatly
contradicted by [his] statements at the plea colloquy that he
‘read[s] and write[s] in English’ and had ‘had an opportunity
to have the documents in this case explained to [him]’” (App.
at 14 (alterations in original) (citation omitted),) and by his
affirmative responses when asked if he was competent, if the
plea agreement had been explained to him, and if he had had
a full opportunity to make an informed decision. As to
James’s level of education, the District Court, being the
appropriate finder of fact, determined that James’s pro se
motion was presented “coherently[.]” (App. at 14.) Thus, the
District Court could fairly conclude that James had the
requisite understanding and information to enter a guilty plea
and that he did so knowingly and voluntarily.
Finally, James contends that his counsel was
ineffective. He attempts to bolster that assertion by pointing
out that he requested new counsel. A valid claim of
ineffective assistance of counsel can negate the intelligent and
voluntary nature of a guilty plea and provide a basis for
withdrawing it. Hill v. Lockhart, 474 U.S. 52, 56-58 (1985).
But the “‘narrow exception to the rule that defendants cannot
attack the efficacy of their counsel on direct appeal’ [only]
exists ‘[w]here the record is sufficient to allow determination
of ineffective assistance of counsel.’” Jones, 336 F.3d at 254(second alteration in original) (citation omitted). A “court
will permit a defendant to withdraw a guilty plea based on
ineffective assistance of counsel only if (1) the defendant
shows that his attorney’s advice was under all the
circumstances unreasonable under prevailing professional
norms; and (2) the defendant shows that he suffered
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‘sufficient prejudice’ from his counsel’s errors.” Id. at 253-
54 (citations omitted). James has not supported either prong.
As to the first, James again relies on his self-serving
and uncorroborated claims that Cattie told him that Judge
Gomez is corrupt; that Cattie “never took the time to explain
[to him] in detail about the plea agreement[;]” and that Cattie
did not investigate his case. (Opening Br. at 3.) His mere
assertions are not enough. See Jones, 336 F.3d at 255 (“Jones
has not pointed to any specific act or omission or objective
evidence to support his blanket contentions.”).
“Significantly, during the plea colloquy, James averred that
… he was ‘satisfied with the representation [he had] received
from [Attorney Cattie].’” (App. at 12 (second and third
alterations in original) (citation omitted).) That alone, given
the rest of this record, is a sufficient ground to disallow a
charge of ineffective assistance of counsel as a basis for
withdrawal of the guilty plea. See United States v. Erwin,
765 F.3d 219, 226 (3d Cir. 2014) (enforcing a waiver based
on a defendant’s responses during plea colloquy). Moreover,
in Cattie’s motion to withdraw as counsel, he represented that
he had met with James on multiple occasions, discussed the
plea agreement, investigated the claims against James, and
never maligned the Court. The District Court could properly
decide on this record, without abusing its discretion, that that
version of events was more likely the accurate one.
James has also failed to establish the prejudice prong.
A defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Strickland v. Washington, 466 U.S. 668,
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694 (1984). James has not provided any reason, yet again
aside from his own self-serving statements, to believe that
Cattie’s alleged conduct caused him to forgo a jury trial and
admit guilt.
Because neither James’s assertions of innocence nor
any of his other reasons for withdrawal favored granting his
motion, the District Court was not required to evaluate the
prejudice to the government. See Jones, 336 F.3d at 255(“[T]he Government need not show such prejudice when a
defendant has failed to demonstrate that the other factors
support a withdrawal of the plea.”). Having reasonably
determined that the relevant legal factors did not favor
James’s motion to withdraw his guilty plea, the District Court
was within its discretion to deny the motion.
III. CONCLUSION
For the foregoing reasons, we will affirm the order of
the District Court.
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