United States v. Harrison ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20257
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE HENRY HARRISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-98-CR-179-1)
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June 29, 2000
Before WIENER and STEWART, Circuit Judges, and ROSENTHAL*, District
Judge.
PER CURIAM:**
In this direct criminal appeal, Defendant-Appellant Willie
Henry Harrison complains that his plea of guilty pursuant to a
written plea agreement was not knowingly and voluntarily given
because of alleged deficiencies in his Fed. R. Crim. P. 11 colloquy
with the court; and further complains that the district judge erred
reversibly in denying his motion to withdraw his guilty plea for
the same reason plus his asserted failure to understand that he was
*
District Judge for the Southern District of Texas, sitting
by designation.
**
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that this opinion should not be published and is not precedent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.
pleading guilty to a conspiracy to possess a controlled substance
rather than possession itself. Finding no reversible error, we
affirm the district court’s denial of Harrison’s motion to withdraw
his plea and also affirm Harrison’s conviction and sentence.
I.
FACTS, PROCEEDINGS, AND ANALYSIS
Harrison and his wife, Alice, were charged in a 6-count
indictment for various narcotic offenses. He entered into a
written plea agreement to plead guilty to conspiracy to possess 50
grams or more of crack cocaine (Count 1), to waive his right to
appeal, and to cooperate fully with the government. In return, the
government agreed to dismiss the remaining counts of the indictment
and, if it determined that Harrison had provided substantial
assistance, to move for a downward departure. Several months
later, the government filed an “Information of Prior Convictions”
for purposes of sentence enhancement, alleging that Harrison had
three prior felony convictions for possession of marijuana. On the
same day as that filing, Harrison appeared for re-arraignment at
which he pleaded guilty to the one conspiracy count. Present
during the Rule 11 colloquy with the district court were Harrison,
his compensated counsel, and the Assistant United States Attorney.
At that time, of course, there had been no presentence
investigation conducted by the Probation Department so, among other
unknowns, the validity of the government’s allegations of prior
convictions remained to be determined.
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Although the advice given by the district court during the
plea colloquy was less than perfect, perfection is not required;
and we find the advice adequate on the question of mandatory
minimum sentence. Although Harrison complains that he was confused
by the court and did not understand that, if the three prior counts
were proven and the government did not move for a downward
departure below the minimum pursuant to § 5K.1 of the Sentencing
Guidelines, the court would have no choice but to sentence him to
incarceration for life, we remain unconvinced. As noted, Harrison
was accompanied by experienced counsel and he himself is a mature,
experienced, and obviously street-wise drug dealer with
considerable prior exposure to the criminal justice system. These
facts, coupled with the written plea agreement entered into by
Harrison, with advice of counsel, satisfies us that he knew
precisely what he faced and that his plea of guilty was given
knowingly and voluntarily. We have no doubt that Harrison
concluded (correctly) that, in light of the overwhelming evidence
of his guilt, his only possible chance of avoiding life
imprisonment was to plead, cooperate, and hope for a downward
departure. He did that in October, 1998, and not until January,
1999 did he file a letter pro se seeking to withdraw his guilty
plea. By then, of course, he must have ascertained that “Plan A”
was not working, making “Plan B” necessary, i.e., claim a deficient
Rule 11 colloquy and seek to withdraw his guilty plea.
Our careful review of the transcript of the Rule 11 hearing
dispels any doubt about the adequacy of the colloquy regarding
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mandatory minimums. The court made sufficiently clear that if the
government’s allegations of prior convictions were confirmed, the
mandatory minimum would be life imprisonment. The court stated
that “the punishment in this case can be up to life in prison” and
added that if the government “can’t prove some other conviction,
the basic punishment is 10 years to life,” i.e., there’s 10-year
minimum no matter what but life if the priors are proved. When
viewed in light of the additional clarification by the prosecutor
(“...potentially, a mandatory minimum of life with the
enhancement,”), Harrison had to know the situation, as did his
counsel who —— like Harrison —— indicated his understanding and
agreement and never objected.
Even more lame is Harrison’s assertion that he did not
understand that he was implicating Alice in the conspiracy plea,
insisting that he only intended to plead guilty to his own acts.
Again, Harrison has been a “frequent flier” in the system, was
advised by counsel before entering the plea agreement and at the
Rule 11 hearing, and agreed under oath that he was guilty of the
conspiracy. Moreover, he and Alice —— who, incidentally, pleaded
guilty to the same conspiracy —— were arrested together; drugs and
paraphernalia were discovered in the bedroom of their community
domicile; and the evidence is overwhelming that they jointly
conducted their illicit business from their common residence.
The district court conducted a live hearing on Harrison’s
motion to withdraw his guilty plea in February, 1999, after which
the court denied the motion. Considering the hearing and the
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evidence, and testing them under the seven factors specified in
United States v. Karr, 740 F.3d 339, 343-44 (5th Cir. 1984), we are
left with no doubt but that the court did not abuse its discretion
in denying Harrison’s motion to withdraw his guilty plea.
II.
CONCLUSION
For the foregoing reasons we conclude that Harrison’s plea of
guilty was knowing and voluntary, and that the district court did
not abuse its discretion or otherwise commit reversible error in
denying Harrison’s motion to withdraw his plea of guilty. His
conviction and sentence are, therefore,
AFFIRMED.
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