United States v. Antoine Lundy , 601 F. App'x 219 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4965
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINE DEMETRIUS LUNDY, a/k/a Buff,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:12-cr-00106-RGD-DEM-3)
Argued: January 28, 2015 Decided: March 10, 2015
Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Norfolk,
Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Darryl J. Mitchell, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In January 2013, Appellant–Defendant Antoine Lundy pleaded
guilty to two federal offenses. Four months later, on the day
before he was scheduled for sentencing, Lundy moved to withdraw
his plea. He claimed that he was legally innocent and had
pleaded guilty only to protect his wife from prosecution. After
delaying Lundy’s sentencing and holding a two-day hearing, the
district court denied Lundy’s motion to withdraw. On appeal, we
affirm that decision.
I.
A.
This case arises from a 2012 law-enforcement sting of
cocaine dealers in Norfolk, Virginia. Law enforcement used an
undercover informant (“the informant”) to conduct a series of
controlled purchases. On multiple occasions, the informant
bought cocaine from Willard Perry and Sherman Henderson.
On March 20, 2012, the informant arranged to buy a half-
ounce of cocaine from Perry at the informant’s residence. Soon
after talking with Perry, however, the informant received a
phone call from Appellant–Defendant Antoine Lundy. Lundy said
that Perry “had been called away” and that Lundy would meet the
informant instead. J.A. 69.
2
At approximately 5:50 p.m., an officer observed a white
Chevrolet car arrive outside the informant’s residence. The
officer saw a woman driving the car, which was registered to
Lundy’s wife. Lundy was a passenger. While the woman waited in
the car, Lundy entered the residence and sold 13 grams of crack
cocaine to the informant for $550.
After obtaining a federal indictment against Lundy, law
enforcement arrested him at his residence on July 16, 2012.
While there, officers seized three loaded firearms, two bags of
cocaine, marijuana, $2,370 in cash, and ammunition. Later,
Lundy admitted that he possessed at least one of the firearms in
furtherance of trafficking drugs.
B.
On November 20, 2012, the government filed a superseding
indictment, charging Lundy with five counts. On January 22,
2013, Lundy entered into a plea agreement and pleaded guilty to
two of the counts: conspiring to distribute cocaine under 21
U.S.C. § 846 (Count 1) and possessing a firearm in furtherance
of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)
(Count 5).
Under the plea agreement, the government “agree[d] not to
prosecute the defendant’s wife . . . for conduct described in
the indictment.” J.A. 59. In turn, Lundy agreed to “knowingly
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waive[] the right to appeal the conviction and any sentence
[with certain limited exceptions].” J.A. 57-58. Lundy also
conceded that the government could prove certain facts that
implicated Lundy in the offenses. 1
In accepting the plea agreement, the district court engaged
in the colloquy mandated by Rule 11 of the Federal Rules of
Criminal Procedure. Lundy attested to the following: (i) he had
fully discussed the case with his attorney; (ii) he understood
that he was waiving certain rights; (iii) no one had threatened
him or made any promise (outside of the plea agreement) to
coerce him to plead guilty; (iv) he was entering the plea
“freely and voluntarily”; and (v) he was pleading guilty to
Counts 1 and 5 because he was “in fact, guilty of the two
offenses.” J.A. 44, 47.
Lundy’s counsel described the plea agreement’s contents
before the district court, including the immunity provision for
Lundy’s wife. The court did not, however, inquire about the
immunity provision. As to the waiver-of-appeal provision, the
district court mentioned the waiver of Lundy’s “right to appeal
any sentence imposed,” but did not mention any waiver of the
right to appeal his conviction. J.A. 44.
1
Specifically, Lundy admitted that the government could
prove the facts as stated in Part I.A of this opinion.
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C.
On June 5, 2013--the day before Lundy was scheduled to be
sentenced--Lundy moved to withdraw his guilty plea under Rule
11(d)(2)(B) of the Federal Rules of Criminal Procedure. He
claimed that he was legally innocent and that he pleaded guilty
only to protect his wife from prosecution. He also denied ever
having a “drug distribution relationship” with Perry or
Henderson. J.A. 82. The district court then postponed Lundy’s
sentencing hearing and scheduled a hearing on Lundy’s motion.
The court first heard testimony on October 17, 2013. Both
of the alleged co-conspirators, Henderson and Perry, testified
that they were partners. They also said that they had supplied
Lundy with cocaine on multiple occasions over the years, and
that Lundy would cook the cocaine into crack (as twice witnessed
by Perry). As to the March 20, 2012 controlled purchase,
Henderson and Perry noted that they had originally arranged the
deal with the informant, but that Lundy in fact sold cocaine to
the informant and returned money to them.
The court again heard testimony on November 6, 2013. 2 The
informant and a police officer testified that Lundy had called
2
At the beginning of the second day, Lundy attempted to
withdraw the motion to withdraw his guilty plea. The district
court prohibited Lundy from doing so because although Lundy
wanted to reaffirm his plea, he simultaneously maintained his
legal innocence. See, e.g., J.A. 363-64 (Lundy claiming that
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the informant and arrived at the informant’s residence on March
20, 2010. The officer said that an unidentified woman was
driving the car in which Lundy arrived and that the car’s
license plate was registered to Lundy’s wife.
Lundy’s brother testified that he and Lundy were working in
Richmond, Virginia on March 20, 2012, and did not return to
Norfolk until after 7:30 p.m.--that is, after when the drug deal
purportedly occurred. He could not corroborate his assertion
with documentary evidence, however, because they were supposedly
paid with cash.
Lundy’s wife testified that during March 2012, Lundy would
sometimes return home after 7:30 p.m. She admitted, however,
that she owned a white Chevrolet Monte Carlo, similar to the car
described by the supervising police officer. She also admitted
that, based on the search of her residence on July 16, 2012, she
faced state charges for possessing cocaine, although the charges
were ultimately dismissed after she pleaded guilty as a first
offender. Va. Code Ann. § 18.2–251.
Lastly, Lundy testified. He denied his guilt, denied any
drug relationship with Perry or Henderson, and denied selling
drugs to the informant. He claimed that he pleaded guilty only
because the government had threatened to prosecute his wife.
“[t]he stuff that was at [his] house was there because [he] had
a birthday party,” not for distribution).
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Although he conceded that his story meant that he committed
perjury at the plea hearing, he claimed to have told the truth
since then. And he accused Henderson, Perry, the informant, and
the police officer of lying about Lundy’s involvement.
After hearing all the evidence, the district court orally
denied Lundy’s motion to withdraw. In doing so, the court
credited the testimony of the government’s witnesses. The court
also found that the testimony of Lundy, his wife, and his
brother was not credible. One week later, the district court
memorialized its decision in an order. On December 10, 2013,
the district court sentenced Lundy to 250 months (over 20 years)
in prison.
II.
On appeal, Lundy argues that the district court erred in
denying the motion to withdraw his guilty plea. 3 Unsurprisingly,
the government disagrees. The government also argues that we
should dismiss this appeal because under the plea agreement
Lundy has waived any right to challenge his conviction. As
discussed below, we decline to enforce the waiver provision but
nevertheless find that the district court did not err.
3
Lundy’s counsel noted at oral argument that Lundy does not
challenge the actual plea’s validity.
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A.
We first address the government’s waiver argument.
Although the plea agreement provided that Lundy waived any right
to appeal his conviction and sentence, the district court
mentioned the waiver to Lundy only in regard to Lundy’s right to
appeal his sentence. Generally, a defendant’s waiver of the
right to appeal is valid if (1) a judge questions a defendant
about the waiver of his appellate rights during the Rule 11
colloquy and (2) “the record indicates that the defendant
understood the full significance of the waiver.” United States
v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (quoting United
States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012)).
Because the judge did not question Lundy about the full scope of
the waiver provision and the record does not otherwise indicate
that Lundy understood its full significance, we decline to
enforce the waiver provision. Thus, we deny the government’s
motion to dismiss Lundy’s appeal.
B.
We next address the district court’s denial of Lundy’s
motion to withdraw his plea under Rule 11, a decision which we
review for abuse of discretion. United States v. Ubakanma, 215
F.3d 421, 424 (4th Cir. 2000). Although Rule 11 permits the
withdrawal of a guilty plea before sentencing, “[a] defendant
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has no ‘absolute right’ to withdraw a guilty plea, and the
district court has discretion to decide whether a ‘fair and just
reason’ exists upon which to grant a withdrawal.” United States
v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (quoting Ubakanma,
215 F.3d at 424). Because we find that the district court did
not abuse its discretion in denying Lundy’s motion, we affirm.
1.
In considering a withdrawal motion, “the inquiry is
ordinarily confined to whether the underlying plea was both
counseled and voluntary.” Id. at 414 (quoting United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993)). “[R]eversal is
warranted only if the plea proceedings were marred by a
fundamental defect that inherently resulted in a complete
miscarriage of justice, or in omissions inconsistent with
rudimentary demands of fair procedure.” Ubakanma, 215 F.3d at
425.
To assist this inquiry, a court may consider six factors:
(1) whether the defendant has offered
credible evidence that his plea was not
knowing or not voluntary, (2) whether the
defendant has credibly asserted his legal
innocence, (3) whether there has been a
delay between the entering of the plea and
the filing of the motion, (4) whether
defendant has had close assistance of
competent counsel, (5) whether withdrawal
will cause prejudice to the government, and
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(6) whether it will inconvenience the court
and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). As
set forth below, we agree with the district court that none of
these factors supports Lundy’s request to withdraw his guilty
plea.
2.
The first factor considers “whether the defendant has
offered credible evidence that his plea was not knowing or not
voluntary.” Id. Lundy argues that he acted involuntarily under
the government’s threat to prosecute his wife.
Although there is nothing “per se invalid” about including
third-party immunity clauses in plea agreements, Harman v. Mohn,
683 F.2d 834, 838 (4th Cir. 1982), we have noted that “[s]pecial
care must be taken to determine the voluntariness of the plea in
such circumstances,” United States v. Morrow, 914 F.2d 608, 613
(4th Cir. 1990). Coercion may be present if (1) “the defendant
demonstrates reluctance to enter a guilty plea, and does so only
because of pressure from the third party” or (2) the promise for
leniency is in regard to a third party for whom the “government
actually lacks probable cause to charge.” United States v.
Lemery, 998 F.2d 1011, at *2 (4th Cir. 1993) (per curiam)
(unpublished table decision) (citations omitted).
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In this case, the record does not indicate (i) any
reluctance by Lundy to plead guilty at the plea hearing or
(ii) that the plea was otherwise unknowingly or involuntarily
made. Rather, the record shows that Lundy admitted under oath
that he was pleading guilty because he was in fact guilty of the
charged offenses. He affirmed his plea as knowing and
voluntary. At no point did Lundy equivocate on his guilt.
In addition, the district court did not err in finding that
the government would have had probable cause to charge Lundy’s
wife. In other words, the government had evidence that “would
warrant the belief of a prudent person that [Lundy’s wife] had
committed . . . an offense.” Park v. Shiflett, 250 F.3d 843,
851 (4th Cir. 2001) (quoting United States v. Manbeck, 744 F.2d
360, 376 (4th Cir. 1984)). After the search of Lundy’s
residence, his wife admitted that she possessed cocaine.
Moreover, evidence provided a basis to believe that she drove
Lundy to the informant’s residence on March 20. These facts--
tying her to cocaine and the underlying drug deal--would have
provided the government with probable cause to charge her as a
co-conspirator in the drug conspiracy under 21 U.S.C. § 846.
Thus, the district court rightly rejected Lundy’s argument that
the government coerced his plea with improper threats.
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3.
The second factor in assessing a motion to withdraw
considers “whether the defendant has credibly asserted his legal
innocence.” Moore, 931 F.2d at 248. Again, this factor does
not support Lundy’s request. Put simply, the evidence against
Lundy is overwhelming, and there is no basis for us to find that
he has credibly asserted his legal innocence. In essence, he
rejects all that he said under oath, while spurning as lies all
the testimony of his co-conspirators, the confidential
informant, and law enforcement. Notwithstanding Lundy’s claim,
we defer to the district court’s credibility determination.
United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (citing
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)). Here, the
credible testimony established that Lundy committed the charged
offenses. Thus, we find no error in the district court’s
rejection of Lundy’s claim of legal innocence.
4.
The district court also considered four other factors in
deciding Lundy’s motion. See Moore, 931 F.2d at 248 (providing
that a court analyze the delay in filing the motion, the
presence of close assistance from competent defense counsel, the
prejudice to the government, and judicial economy). Lundy’s
argument in regard to these factors is cursory and, in essence,
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blames the government for Lundy’s delay in withdrawing his plea
until the day before sentencing. After considering these
factors, we find that they also cut against Lundy’s claim.
Thus, Lundy has offered no fair or just reason to withdraw his
plea, and we find no error in the district court’s denial of
Lundy’s motion.
III.
For the aforementioned reasons, we affirm the district
court’s order and the appellant’s conviction.
AFFIRMED
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