United States v. Demont Herrod , 595 F. App'x 402 ( 2015 )

Case: 13-40703 Document: 00512940261 Page: 1 Date Filed: 02/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40703 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 19, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
DEMONT MENASCO HERROD,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
No. 4:11-CR-176-1
Before KING, DAVIS, and OWEN, Circuit Judges.
KING, Circuit Judge:*
Defendant-Appellant Demont Menasco Herrod pleaded guilty to several
drug-related crimes and was sentenced to a term of imprisonment of 175
months. After his guilty plea, but prior to sentencing, Herrod moved: (1) to
dismiss his counsel and proceed pro se, and (2) to withdraw his guilty plea.
Both motions were referred to a magistrate judge who, after conducting a
hearing, recommended that the district court grant Herrod’s motion to proceed
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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pro se and deny his motion to withdraw the guilty plea. The district court
adopted the recommendation. On appeal, Herrod challenges the district
court’s ruling as to both motions. For the following reasons, we AFFIRM the
judgment of the district court.
I. Factual and Procedural Background
On September 15, 2011, a federal grand jury returned an indictment
charging Defendant-Appellant Demont Menasco Herrod on two counts: (1) a
violation of 21 U.S.C. § 846, conspiracy to distribute and possess with the
intent to distribute cocaine and marijuana (“Count One”); and (2) a violation of
18 U.S.C. § 924(c), possession of a firearm in furtherance of a drug trafficking
crime (“Count Three”). 1 Herrod made his initial appearance on September 28,
2011, during which Herrod was advised of his charges, the maximum penalties
he faced, and his right to counsel. At this time, a federal public defender was
appointed for Herrod. On October 28, 2011, the court granted Herrod’s motion
to substitute private retained counsel for his public defender.
On June 21, 2012, pursuant to a written plea agreement, Herrod waived
his right to a jury trial and entered a plea of guilty to Count One insofar as it
charged him with conspiracy to distribute and possess with the intent to
distribute 1,000 kilograms or more of marijuana. With the consent of the
parties, the plea hearing took place before the magistrate judge (“MJ”). The
MJ advised Herrod of the nature of the charges against him, as well as the
maximum possible penalties and mandatory minimum sentence he faced. The
MJ then issued findings of fact and a recommendation that the district court
accept Herrod’s guilty plea. On June 28, 2012, the district court adopted the
recommendation and found Herrod guilty. Under the plea agreement, Herrod
waived the right to appeal his conviction and sentence except for “(a) any
1 Count Two of the indictment pertained only to Herrod’s co-defendant.
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punishment imposed in excess of the statutory maximum, and (b) a claim of
ineffective assistance of counsel that affects the validity of the waiver or the
plea itself.” 2 On December 13, 2012, the probation department prepared a
presentence report (“PSR”), which recommended a term of imprisonment of
315 months. Herrod, through his attorney, filed various objections to the PSR.
On March 25, 2013—prior to the sentencing hearing, but nine months
after his guilty plea—Herrod filed a pro se motion to dismiss his counsel,
seeking to exercise his right to proceed pro se. In the same motion, Herrod also
moved to withdraw his guilty plea pursuant to Federal Rule of Criminal
Procedure 11(d)(2)(B). Herrod stated in the motion that his counsel “coerced”
him into pleading guilty, “convincing him that the best thing for him to do is
plead guilty and sign without addressing him [sic] questions about the
constitutional limits on governmental authority.” 3 Herrod also cited authority
related to his right to represent himself pro se, noting that choosing to proceed
pro se may “ultimately [be] to his own detriment.” (quoting Faretta v.
California, 422 U.S. 806, 834 (1975)). Herrod’s attorney separately filed a
motion to withdraw as counsel. The Government filed an opposition to
Herrod’s request to withdraw his guilty plea. The district judge referred the
motions to the MJ, 4 who held a hearing on April 11, 2013.
At the hearing, the MJ confirmed that Herrod still wished to proceed pro
se. The MJ also stated:
I—I’m required, first of all, to tell you that—of course, you have a
right to represent yourself. You’ve done your own research on that.
You know that. But I’m required to—if you’ve done that much
2 The Government does not contend that the waiver applies to bar the claims Herrod
raises on appeal.
3 Herrod also contended that his counsel refused to file various motions he had
prepared—including a motion for an evidentiary hearing, for grand jury minutes, for a bill of
particulars, and for change of venue.
4 This was the same MJ who had taken Herrod’s guilty plea.
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research, you know that courts also require that a judge go over
with you that there can be problems with self-representation. You
know, you’re not a lawyer. You may be a smart guy and, for all I
know, a very smart guy, but the law is a different area and there
can be certain legal obstacles, legal hurdles that you may
encounter that would be detrimental to your case and would be
advisable to have a lawyer. Now, do you understand that?
Herrod responded that he did understand, noting: “I would like for the
Court to give me an investigator and time to go to the law library, things that
I need to help me fight the government.” The MJ informed Herrod that he
would “have to address these issues as we go along” and stated that Herrod
does not “have a right to have an investigator.” The MJ further stated: “I would
appoint a lawyer for you, but you also have a right to represent yourself.”
Herrod responded: “Yeah, I’d rather represent myself for right now. I’m in the
process of looking for another attorney.” The MJ then stated:
Okay. You can represent yourself. I’m just establishing on the
record that there are—that it’s dangerous. I use as an example all
the time what Abraham Lincoln said: “He who represents himself
has a fool for a client.” I mean, you hear that from the first day of
law school. I wouldn’t even represent myself in a case, even in a
minor civil case. You get too caught up in the emotions and
sometimes you lose sight of what’s real. But, anyway, I’m making
that point to you. So, it’s your decision, though, to knowingly and
voluntarily at this time to waive your right to counsel. Yes?
Herrod responded in the affirmative.
Herrod refused to participate in the portion of the hearing relating to his
motion to withdraw his guilty plea, as he “want[ed] to have a district judge in
front of” him. Therefore, the MJ discussed the motion with the Government’s
counsel while Herrod remained silent. Following the hearing, the MJ issued a
report and recommendation that Herrod’s counsel be permitted to withdraw,
that Herrod’s request to proceed pro se be granted, and that Herrod’s request
to withdraw his guilty plea be denied. Herrod timely objected to the MJ’s
report and recommendation. He also filed a variety of other motions, including:
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several motions to dismiss, a motion to quash, a motion for a hearing, and a
motion for a bill of particulars. The probation department prepared a revised
PSR on May 13, 2013, to which Herrod filed pro se objections. On June 14,
2013, the district court adopted the report and recommendation of the MJ,
granting Herrod’s motion to proceed pro se and denying his motion to withdraw
his guilty plea. 5 After conducting a sentencing hearing (at which Herrod
appeared pro se), the court sentenced Herrod to a below-guidelines term of
imprisonment of 175 months, five years of supervised release, and a $100
special assessment. Pursuant to the plea agreement, the Government moved
to dismiss Count 3 of the indictment; the district court granted the motion.
Herrod then filed a motion for reconsideration, which the court denied. Herrod
timely appeals.
II. Standard of Review
A criminal defendant has a Sixth Amendment right to represent himself,
“but only when he knowingly and intelligently chooses to do so.” United States
v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). A defendant’s claim that he did not
knowingly and intelligently waive the right to counsel is reviewed de novo.
United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003).
“A defendant may withdraw a plea of guilty . . . after the court accepts
the plea, but before it imposes sentence if . . . the defendant can show a fair
and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
“The defendant bears the burden of establishing a fair and just reason for
withdrawing his plea,” and “[a] district court’s denial of a motion to withdraw
a guilty plea is reviewed for abuse of discretion.” United States v. Powell, 354
F.3d 362, 370 (5th Cir. 2003).
5 The court also denied Herrod’s various other pending motions.
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III. Discussion
A. Motion to Proceed Pro Se
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held
that although the Sixth Amendment entitles a criminal defendant to forgo
counsel and represent himself, “the accused must knowingly and intelligently
forgo th[e] relinquished benefits [of counsel].” Id. at 835 (internal quotation
marks omitted). The Court stated: “Although a defendant need not himself
have the skill and experience of a lawyer in order competently and intelligently
to choose self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes open.” Id. (internal
quotation marks omitted).
Accordingly, we have held that in order to ensure that the waiver of
counsel is knowingly and intelligently made, the district court must consider
various factors, including “the defendant’s age and education, and other
background, experience, and conduct.” United States v. Davis, 269 F.3d 514,
518 (5th Cir. 2001) (internal quotation marks omitted). The court must also
“ensure that the waiver is not the result of coercion or mistreatment of the
defendant, and must be satisfied that the accused understands the nature of
the charges, the consequences of the proceedings, and the practical meaning of
the right he is waiving.” Id. (internal quotation marks and footnote omitted).
However, this circuit “require[s] no sacrosanct litany for warning defendants
against waiving the right to counsel.” Id. at 519. Rather, “[d]epending on the
circumstances of the individual case, the district court must exercise its
discretion in determining the precise nature of the warning.” Id.; see also
United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (“Because of the vast
differences from case to case, and defendant to defendant, a district court must
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consider the totality-of-circumstances in determining whether a defendant has
properly waived his right to counsel.”). 6
Herrod contends that the MJ failed to adequately advise him of the
dangers and disadvantages of proceeding pro se. 7 The MJ made the following
statements to Herrod during the hearing:
• “[T]here can be problems with self-representation.”
• “You know, you’re not a lawyer. You may be a smart guy and, for
all I know, a very smart guy, but the law is a different area and
there can be certain legal obstacles, legal hurdles that you may
encounter that would be detrimental to your case and would be
advisable to have a lawyer.”
• “I’m just establishing on the record that there are—that it’s
dangerous.”
• “I would appoint a lawyer for you, but you also have a right to
represent yourself.”
• “I use as an example all the time what Abraham Lincoln said: ‘He
who represents himself has a fool for a client.’ I mean, you hear
that from the first day of law school. I wouldn’t even represent
myself in a case, even in a minor civil case. You get too caught up
in the emotions and sometimes you lose sight of what’s real.”
6 The Benchbook for U.S. District Court Judges, published by the Federal Judicial
Center, provides proposed questions the district judge may ask in conducting this inquiry.
However, this court “has approved warnings much less thorough than the guidelines
presented in the bench book.” Jones, 421 F.3d at 363–64.
7 Herrod concedes that the MJ did not err by failing to inform him of “the nature of
the charges” or “the consequences of the proceedings,” Davis, 269 F.3d at 518 (internal
quotation marks omitted), given that Herrod acknowledged his understanding of this
information at his earlier plea hearing. Herrod also does not argue that the MJ erred by
failing to inquire into Herrod’s education and background during the colloquy. Indeed, the
MJ had the opportunity to evaluate Herrod’s competence in person both at the Faretta
hearing and at the prior hearing in relation to Herrod’s guilty plea.
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Although this relatively sparse colloquy is considerably less than ideal, we
conclude that it is not constitutionally defective under the particular
circumstances of this case.
As we have repeatedly stated, district courts need not “follow a script”
while conducting Faretta hearings, as “[t]his court requires no sacrosanct
litany for warning defendants against waiving the right to counsel.” Jones,
421 F.3d at 363 (internal quotation marks and brackets omitted); see also
Davis, 269 F.3d at 519; Virgil, 444 F.3d at 453. The colloquy here is
comparable to the colloquy we approved of in Joseph:
After expressing a desire to proceed pro se, the court explained to
Joseph the disadvantages of self-representation. The court
provided: “I seriously recommend to you that you allow Mr.
Chaney and his assistant to represent you . . . because they are
very good lawyers.” After informing Joseph that Mr. Chaney
would remain as stand-by counsel, the court reiterated its
warning: “It is my strong recommendation to you that you allow
Mr. Chaney to do the questioning, that you allow him to do the
cross-examination, and that you allow him to put on evidence if
there is any evidence on your behalf.” After explaining that Joseph
had shown no good cause for the appointment of a different defense
counsel, the district court urged once again, “I am discouraging you
from representing yourself.” Despite these warnings, Joseph
proceeded pro se.
Joseph, 333 F.3d at 590 (internal brackets omitted) (affirming the district
court’s decision to allow the defendant to proceed pro se). Here, the MJ
similarly recommended that Herrod proceed with counsel, repeatedly warning
Herrod that he would face “legal obstacles” and other problems that could be
“detrimental” to his case. Cf. United States v. Fulton, 131 F. App’x 441, 442–
43 (5th Cir. 2005) (unpublished) (determining that colloquy was sufficient
where the district court “warned [the defendant] that his case was ‘complex,’
that it would involve ‘complex issues’ regarding wiretap evidence, that it was
in [the defendant]’s ‘best interest’ to continue with appointed counsel, and that
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he would have a ‘daunting task’ if he proceeded pro se at trial, where he would
be faced with a ‘very capable prosecutor’”).
Moreover, we have emphasized that both the “the stage of the
proceedings and the setting in which the waiver is advanced” are relevant to
this analysis. Virgil, 444 F.3d at 453. In Virgil, we favorably cited a case from
the Third Circuit, id., concluding that the “distinction [between the guilt phase
and the sentencing hearing] is clearly relevant to the content of the colloquy
which the court must have with the defendant,” United States v. Salemo, 61
F.3d 214, 219 (3d Cir. 1995) (“[T]he inquiry at sentencing need only be tailored
to that proceeding and the consequences that may flow from it.”). Here, Herrod
moved to proceed pro se after an adjudication of his guilt, with only his
sentence and his motion to withdraw his guilty plea (which Herrod filed
concurrently with his motion to proceed pro se) left to be decided. Because
Herrod was not facing the daunting task of conducting a criminal trial by
himself on his own behalf, the colloquy here “need not be as exhaustive and
searching as a similar inquiry before the conclusion of trial.” Id.; cf. Patterson
v. Illinois, 487 U.S. 285, 299–300 (1988) (“[W]e require a more searching or
formal inquiry before permitting an accused to waive his right to counsel at
trial than we require for a Sixth Amendment waiver during postindictment
questioning . . . because the full dangers and disadvantages of self-
representation during questioning are less substantial and more obvious to an
accused than they are at trial.” (internal quotation marks and citation
omitted)). Thus, although in a prior case this court deemed insufficient a
relatively generic Faretta colloquy, the defendant in that case sought to
proceed pro se on the eve of trial, see Jones, 421 F.3d at 362, when the risks of
self-representation are at their highest, cf. Virgil, 444 F.3d at 454 (concluding
that district court erred in allowing defendant to proceed pro se at sentencing
stage where “[t]he government concede[d] that no Faretta colloquy took place”).
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Other factors particular to this case support affirming the district court’s
decision to allow Herrod to proceed pro se. First, Herrod has a lengthy criminal
history—as evidenced in his PSR—including over a dozen criminal convictions.
Although the present case appears to have been Herrod’s first experience in
federal court, there can be little doubt that Herrod’s substantial experience
with the criminal justice system apprised him of the role of an attorney, what
an attorney adds to the process. See Davis, 269 F.3d at 518 (stating that the
defendant’s background and experience are factors relevant to Faretta
inquiry); Greene v. United States, 880 F.2d 1299, 1304 (11th Cir. 1989)
(concluding that the defendant’s “substantial experience with the criminal
justice system . . . weighs in favor of a finding of effective waiver”). Herrod also
recognized in his motion to proceed pro se that doing so could ultimately be “to
his own detriment.” (quoting Faretta, 422 U.S. at 834). Moreover, Herrod’s
repeated insistence on proceeding pro se—as evidenced in his motion and in
the hearing transcript—supports the conclusion that his waiver of counsel was
knowingly and voluntarily made. See United States v. Martin, 790 F.2d 1215,
1218 (5th Cir. 1986) (finding waiver knowing and voluntary where proceeding
pro se “was [the defendant’s] apparent and stated intent before arraignment”
and where “[i]t was his obvious intent before trial”). Although Herrod briefly
stated during the Faretta hearing that he was “in the process of looking for
another attorney,” he declined the MJ’s offer to have another attorney
appointed for him. Indeed, Herrod had already gone through two attorneys
during his case. It appears that Herrod, who was determined to file various
(apparently frivolous) motions he had prepared, realized that the only way to
accomplish this end was to proceed pro se and file the motions himself.
Considering the totality of “the circumstances of th[is] individual case,”
Davis, 269 F.3d at 519, we conclude that the MJ’s colloquy was constitutionally
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adequate, and that Herrod knowingly and voluntarily waived his right to
counsel.
B. Motion to Withdraw Guilty Plea
In determining whether the district court abused its discretion by
denying a motion to withdraw a guilty plea, this court considers the following
seven factors:
(1) whether [the defendant] asserted his innocence; (2) whether the
Government would suffer prejudice if the withdrawal motion was
granted; (3) whether [the defendant] delayed in filing his
withdrawal motion; (4) whether the withdrawal would
substantially inconvenience the court; (5) whether close assistance
of counsel was available to [the defendant]; (6) whether the
original plea was knowing and voluntary; and (7) whether the
withdrawal would waste judicial resources.
United States v. McKnight, 570 F.3d 641, 645–46 (5th Cir. 2009) (citing United
States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984)). These “Carr” factors “are
considered for the totality of the circumstances, and the district court is not
required to make a finding as to each individual factor.” Id. at 646. “[T]he
defendant has the burden of proving the withdrawal is justified” and “the trial
court’s decision regarding a withdrawal motion must be accorded broad
discretion.” Carr, 740 F.2d at 344 (internal quotation marks omitted).
Applying the above factors to the facts of this case, we conclude that the district
court did not abuse its discretion by denying Herrod’s motion to withdraw.
Although Herrod asserted his innocence when filing his motion to
withdraw his guilty plea, we accord this factor little weight under the
circumstances. First, an assertion of innocence “alone is far from being
sufficient to overturn denial of a withdrawal motion.” Id. This is especially so
where innocence is asserted “without further explanation.” McKnight, 570
F.3d at 649; see also United States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991)
(“[T]he mere assertion of innocence, absent a substantial supporting record will
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not be sufficient to overturn a denial of a motion to withdraw.”). In his motion
to withdraw his plea, Herrod failed to offer any facts in support of his claimed
innocence, but rather appeared to object only to the PSR’s calculation of his
recommended sentence. Indeed, it is clear from the record that it was the
unexpected length of the PSR’s proposed sentence—not any revelation with
respect to his guilt or innocence—that prompted Herrod to move to withdraw
his plea. Cf. United States v. Rosales, 281 F. App’x 424, 425 (5th Cir. 2008)
(unpublished) (stating that defendant “did not assert his innocence” where he
“merely objected to the quantity of drugs attributed to him for sentencing
purposes”). Furthermore, Herrod acknowledged his guilt on the record at his
guilty plea hearing, and through a signed factual statement—in which he
admitted the facts underlying his offense. “[S]olemn declarations in open court
carry a strong presumption of verity.” McKnight, 570 F.3d at 649 (internal
quotation marks omitted); see also Clark, 931 F.2d at 294 (“Though Clark
claims he has asserted his innocence throughout the government’s
investigation, he did plead guilty under oath to a federal district judge.”).
Because Herrod did not assert his innocence until he filed the motion to
withdraw his plea, this factor deserves little weight, as “[g]uilt or innocence
appears merely to be an issue of expedience for [Herrod].” United States v.
Thomas, 13 F.3d 151, 153 (5th Cir. 1994).
The Government contends that it will suffer prejudice if Herrod is
permitted to withdraw his guilty plea, as several years have passed since
Herrod’s plea, and “investigators, agents, and the prosecutor had moved on to
other pressing matters in reliance on the fact that Herrod’s case has been
concluded.” Herrod responds that the Government would suffer no prejudice,
as his co-defendants will be available to testify against him. Although there is
no doubt that the Government would be burdened by having to try this case
after a delay of more than nine months, the Government’s generic assertion of
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prejudice, which can be put forward in almost any case, does not weigh heavily
in its favor. See McKnight, 570 F.3d at 649 (finding no prejudice even where
“it will be difficult to locate the [confidential source]” to testify for a new trial,
as similar evidence would be available by other means); cf. Clark, 931 F.2d at
295 (deferring to district court finding of prejudice based on “the difficulties in
renewing an investigation long after it had been terminated, the absence from
governmental service of several key governmental investigators and the fact
that most of the records are no longer in a convenient form”). In any event,
even “the absence of prejudice to the Government does not necessarily justify
reversing the district court’s decision to deny a motion to withdraw a guilty
plea.” McKnight, 570 F.3d at 649.
The third factor—Herrod’s delay in filing his motion to withdraw—
weighs heavily in favor of the Government. Herrod filed the motion more than
nine months after pleading guilty. In previous cases, we have determined that
substantially shorter delays weigh in favor of affirming the denial of a motion
to withdraw. See Thomas, 13 F.3d at 153 (stating that “the six-week delay
between entry of the plea and the motion to withdraw is significant”); United
States v. Rinard, 956 F.2d 85, 88–89 (5th Cir. 1992) (finding that, “given the
69-day delay between [the defendant]’s plea and his verbal motion to withdraw
the plea,” among other factors, “the district court did not abuse its discretion
in denying [the defendant]’s verbal motion to withdraw his guilty plea”);
United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988) (holding that delay
weighed in favor of affirming denial of motion where the defendant “first moved
for withdrawal at sentencing, seven weeks after pleading guilty”); Carr, 740
F.2d at 345 (stating that a motion to withdraw “was not promptly filed” where
“[t]he defendant waited twenty-two days [after pleading guilty] before filing
his motion”). Herrod argues that he did not delay in filing the motion, but
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rather filed it as quickly as possible after learning of the PSR’s recommended
sentence. However, as this court has stated:
The rationale for allowing a defendant to withdraw a guilty plea is
to permit him to undo a plea that was unknowingly made at the
time it was entered. The purpose is not to allow a defendant to
make a tactical decision to enter a plea, wait several weeks, and
then obtain a withdrawal if he believes that he made a bad choice
in pleading guilty.
Carr, 740 F.2d at 345. The fact that the PSR’s recommended sentence
prompted Herrod to move to withdraw his plea suggests that he was making a
tactical decision—not that his plea was unknowingly made. See Hurtado, 846
F.2d at 997 (rejecting argument that delay was justified because the defendant
“had been thinking and meditating [about] how [his] attorney influenced
[him]” (internal quotation marks omitted)); Thomas, 13 F.3d at 153 (“[The
defendant]’s explanation that his plea resulted from bad advice and pressure
from his attorney would carry more weight had his withdrawal been prompt.”).
This is not a case in which, for example, Herrod had “communicated doubts
regarding the guilty plea” soon after he pleaded guilty. McKnight, 570 F.3d at
650. 8 Thus, Herrod’s substantial delay in filing the motion to withdraw his
plea weighs heavily in the Government’s favor.
The fourth and seventh Carr factors—the inconvenience to the court and
the potential waste of judicial resources—also weigh in the Government’s
favor. Even assuming Herrod’s trial would be relatively short, “the short time
period . . . does not necessitate a finding that there is no inconvenience to the
district court.” Id. Here, the district court made a finding that “the withdrawal
would waste . . . judicial resources.” We are generally hesitant to disrupt such
8 Even if we were to consider only the delay between the filing of the PSR and the
filing of the motion to withdraw, that period—more than three months—is still longer than
the delays in the cases cited above.
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findings, as “the district court is in the best position to know the effect that
withdrawal has on its resources.” McKnight, 570 F.3d at 650; see also Carr,
740 F.2d at 345 (“The district court’s assessment of this factor is entitled to
substantial deference since it is in the best position to know the effect that the
withdrawal had on its resources.”). Herrod offers no persuasive reason to
disturb this finding. Rather, Herrod notes only that more judicial resources
would be wasted by what “promises to be an endless parade of pro se pleadings
and paperwork” filed by Herrod from prison. But Herrod’s threat of future
(possibly frivolous) filings is inapposite to whether allowing this case to go to
trial will inconvenience the court or waste its resources.
Herrod argues that the fifth Carr factor weighs in his favor, as he did not
receive the close assistance of counsel in relation to his plea. Herrod contends
that his attorney: (1) “lied to [him] and misled [him]”; (2) provided him with an
estimated sentence that was “wildly off the mark”; and (3) failed to explain to
him the differences between the state and federal criminal justice systems.
Despite these allegations, we conclude that Herrod was afforded close
assistance of counsel throughout his plea. Here, Herrod’s attorney—privately
retained counsel he had chosen—negotiated a plea agreement on his behalf.
See McKnight, 570 F.3d at 646–47 (discussing prior cases and noting that the
fact that counsel “negotiated a plea agreement” weighs in favor of finding close
assistance of counsel). Importantly, at his plea hearing, Herrod stated that he
was satisfied with the assistance of his counsel. See United States v.
Rodriguez, 306 F. App’x 135, 138 (5th Cir. 2009) (unpublished) (finding no
abuse of discretion in denial of motion to withdraw, noting that the defendant
“indicated that he was satisfied with the representation of counsel during his
plea colloquy”); United States v. Morris, 85 F. App’x 373, 374 (5th Cir. 2003)
(unpublished) (“There is no support in the record for [the defendant’s] assertion
that he did not have close assistance of counsel. [The defendant] stated at the
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guilty plea hearing that he was satisfied with his counsel’s representation and
that his counsel had discussed his entire case with him.”). Herrod also
confirmed in writing that he was “fully satisfied with defense counsel’s legal
representation,” and that he “received satisfactory explanations from defense
counsel concerning each paragraph of [the] plea agreement, each of [his] rights
affected thereby, and the alternatives to entering a guilty plea.” Moreover,
even if Herrod’s counsel misadvised him regarding his likely sentence, this
does not preclude a finding of close assistance of counsel. See McKnight, 570
F.3d at 647–48; see also United States v. Mendez, 447 F. App’x 577, 579 (5th
Cir. 2011) (unpublished) (“[The defendant’s] claim that counsel misadvised him
regarding the Sentencing Guidelines is insufficient to show that he did not
receive close assistance.”); Rosales, 281 F. App’x at 425 (“[A]lthough [the
defendant] demonstrated that counsel’s opinion as to his potential sentence
proved to be incorrect, he has not shown that he was deprived of counsel’s close
assistance.”). Therefore, this factor too weighs in the Government’s favor.
With respect to the sixth Carr factor, we conclude that Herrod’s plea was
knowing and voluntary. Whether a plea is knowing depends on whether the
defendant understood the consequences of his plea; whether it was voluntary
depends on whether the plea was induced by threats or improper promises.
See United States v. Hernandez, 234 F.3d 252, 254 n.3 (5th Cir. 2000). Herrod
argues, without further explanation, that his pro se pleadings should “cast
doubt” on whether his plea was knowing and voluntary. But he has put
forward no evidence suggesting that his plea was unknowing or improperly
induced. In addition, “[t]he consequences of a guilty plea, with respect to
sentencing, mean only that the defendant must know the maximum prison
term and fine for the offense charged.” United States v. Rivera, 898 F.2d 442,
447 (5th Cir. 1990) (internal quotation marks omitted). Thus, “[a]s long as the
defendant understood the length of time he might possibly receive, he was fully
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Case: 13-40703 Document: 00512940261 Page: 17 Date Filed: 02/19/2015
No. 13-40703
aware of his plea’s consequences.” Id. (internal quotation marks and brackets
omitted); see also Rosales, 281 F. App’x at 425 (“[B]ecause Rosales was aware
of his minimum and maximum potential sentences and understood the
elements of the offense as charged, he also has not established that his guilty
plea was not knowing or voluntary.”). The plea transcript makes clear that
Herrod was adequately advised of the maximum and minimum prison terms
and fines he faced, among other consequences. Herrod also acknowledged, in
his plea agreement, that he would not be able to withdraw his plea even if he
was sentenced to a term longer than he expected. Furthermore, although
Herrod contends that his attorney pressured him into accepting a plea deal,
Herrod affirmed under oath at his plea hearing that his plea was “freely and
voluntarily made” and that “no one forced [him], threatened [him], or made
any promises to [him]” to induce him to plead guilty. Such a “declaration in
open court that his plea is not the product of threats or coercion carries a strong
presumption of veracity.” Clark, 931 F.2d at 295 (internal quotation marks
omitted). Thus, this factor weighs in the Government’s favor.
Accordingly, based on the totality of the circumstances, we cannot say
that the district court abused its discretion when it denied Herrod’s motion to
withdraw his guilty plea. The vast majority of the factors—most significant,
Herrod’s delay in filing the motion—weigh strongly in the Government’s favor.
Given the deference this court must accord to the district court’s decision, and
given that Herrod bears the burden to establish that withdrawal is justified,
Carr, 740 F.2d at 344, we conclude that the district court did not err in denying
Herrod’s motion to withdraw his plea.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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