United States v. Weathington, Jerome ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1151
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEROME L. WEATHINGTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 66—David F. Hamilton, Judge.
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ARGUED OCTOBER 3, 2007—DECIDED NOVEMBER 8, 2007
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Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Jerome Weathington pleaded
guilty to five counts of armed robbery, in violation of
18 U.S.C. § 1951(a), and one count of brandishing a fire-
arm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). After the district
court accepted his guilty plea, Mr. Weathington moved
at the sentencing hearing to withdraw it. The court
denied the motion and sentenced Mr. Weathington to
22 years’ imprisonment. On appeal, Mr. Weathington
contests the district court’s denial of his motion to with-
draw his guilty plea. For the reasons set forth in this
opinion, we affirm the judgment of the district court.
2 No. 07-1151
I
BACKGROUND
In October and November 2005, five fast-food restau-
rants in Indianapolis were robbed in a similar manner.
After each of the first four robberies, witnesses described
the perpetrators as two black males carrying guns and
wearing hoods or otherwise concealing their faces. Accord-
ing to witnesses, the men entered the restaurants,
jumped the counter, and demanded money. After the
fifth robbery, witnesses reported that one black man
carrying a gun and wearing a hooded sweatshirt, black
ski mask, black jacket, red pants, and black-and-yellow
Nike shoes entered a McDonald’s restaurant; the man
held the employees at gunpoint and left with cash from
the register and a blue bag of money from the safe, total-
ing about $2,000. Witnesses saw the robber get into a
red van.
Shortly after the last robbery, police stopped a red van
near the McDonald’s and found Mr. Weathington in the
passenger seat. Police also found in the van $2,000 in
cash, a blue bag matching the one taken from the Mc-
Donald’s, black clothing and face masks, red pants, black-
and-yellow Nike shoes, a gun and several cash-register
drawers matching the descriptions of drawers taken in
the previous robberies. The woman driving the van told
police that Mr. Weathington had robbed the McDonald’s;
another person who had acted as a lookout during the
robbery confirmed her report. A third man, who had
participated in some of the previous robberies, im-
plicated Mr. Weathington in all five robberies.
Mr. Weathington pleaded guilty to five counts of
armed robbery and one count of brandishing a firearm
No. 07-1151 3
during and in relation to a crime of violence. In exchange,
the Government promised to dismiss four additional
firearm charges. Pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), the agreement provided for a
specific sentence of 22 years’ imprisonment.
At the plea hearing, Mr. Weathington said that he had
read and understood the terms of the plea agreement and
that he had discussed it with his attorney. The court
explained four times that, if Mr. Weathington pleaded
guilty and the court accepted the plea agreement,
Mr. Weathington would receive a 22-year sentence, no
matter what the calculation under the advisory sentenc-
ing guidelines might be. The court explained that, even
if the advisory guidelines calculation in the presentence
report suggested a reduction for acceptance of responsibil-
ity, that calculation would not affect the sentence
Mr. Weathington would receive because of the specific-
term plea agreement. Mr. Weathington said he under-
stood that, if he pleaded guilty under the agreement, he
would receive a 22-year sentence. The court also asked
about Mr. Weathington’s mental state. Mr. Weathington
said he thought he needed mental health services, but he
also said that he had never received a diagnosis from a
psychiatrist, that he was feeling “all right” that afternoon
and that he was able to think clearly about his plea. Plea
Hr’g Tr. at 5-6. The court concluded that Mr. Weathington
was competent to enter an informed and intelligent guilty
plea.
At one point during the hearing, Mr. Weathington
said he wanted to continue the case so that he could have
more time to think about the plea agreement. The judge
assured him that nobody could make him plead guilty
and that he could go to trial instead, but the judge admon-
4 No. 07-1151
ished him that his decision would “be once and for all.” Id.
at 18. Mr. Weathington decided to plead guilty and said,
under oath, that he had not received any other promises
or threats to induce his plea. Mr. Weathington then ad-
mitted that he had robbed the five restaurants and bran-
dished a firearm during the last robbery. The court ac-
cepted Mr. Weathington’s guilty plea and found that he
had knowingly and voluntarily entered the plea.
At his sentencing hearing, however, Mr. Weathington
moved to withdraw his guilty plea. He argued that he
mistakenly thought he would receive a reduction in
his sentence based on his acceptance of responsibility.
He also argued that he was coerced into pleading guilty
in two ways. First, he wanted to move out of the jail in
which he had been held because it was dirty, because he
did not receive enough soap and because he had lost
visitation privileges for six months. Second, he felt pres-
sured by the Government-imposed deadline by which he
had to decide either to accept the plea agreement or to go
to trial. Additionally, Mr. Weathington argued that he
was mentally incompetent to plead guilty; in reply to the
district court’s inquiry, however, his counsel told the
court that she had no reason to doubt his competence.
The district court denied the motion to withdraw the
plea and found that Mr. Weathington had not presented
a “fair and just reason” to justify a withdrawal. Sent. Tr.
at 66. The court explained that Mr. Weathington’s contra-
diction of his prior sworn testimony that he understood
that he would receive a 22-year sentence was not a fair
and just reason to withdraw the plea. The district court
also determined that being “unhappy and uncomfortable
in jail” did not show that Mr. Weathington’s plea was
involuntary or unknowing. Id. at 66-67. Lastly, based on
No. 07-1151 5
the court’s extensive observations of, and discussions
with, Mr. Weathington, as well as defense coun-
sel’s statement that she had no reason to doubt
Mr. Weathington’s competence, the court found that
there was no “reasonable cause to believe” that Mr.
Weathington was suffering from a mental disease or
defect that rendered him incompetent at the plea hearing
or at the sentencing hearing. Id. at 70-71.
II
DISCUSSION
On appeal, Mr. Weathington submits that the district
court abused its discretion in denying his motion to
withdraw his guilty plea. We review a district court’s
denial of a motion to withdraw a guilty plea for an
abuse of discretion and review the underlying factual
findings for clear error. United States v. Walker, 447 F.3d
999, 1004 (7th Cir. 2006). A defendant may withdraw a
guilty plea before sentencing if the defendant “can show a
fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B); Walker, 447 F.3d at 1004. The defen-
dant bears the burden of demonstrating a fair and just
reason to withdraw his plea, and, after a thorough Rule 11
plea colloquy, faces an uphill battle in doing so. United
States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003).
A.
Mr. Weathington makes three arguments to support his
contention that the district court abused its discretion in
denying his motion. First, he contends that it would be
fair and just to allow him to withdraw his guilty plea
6 No. 07-1151
because he mistakenly believed that he would receive a
sentence of fewer than 22 years’ imprisonment based on a
reduction for acceptance of responsibility. We cannot
accept this contention. “Generally, the fact that a de-
fendant underestimated his sentence when entering his
plea is not a fair and just reason” to allow him to with-
draw his plea. United States v. Gilliam, 255 F.3d 428, 434
(7th Cir. 2001) (quoting United States v. Knorr, 942 F.2d
1217, 1220 (7th Cir. 1991) (holding that a defendant’s
misunderstanding that he might be subject to a four-
level increase in offense level based on his leadership
position in a drug organization was not a fair and just
reason to allow withdrawal of guilty plea)). Representa-
tions made by a defendant at a Rule 11 plea colloquy are
presumed true. Bennett, 332 F.3d at 1099. The district
court, therefore, may discredit any reason that a de-
fendant gives for withdrawing his guilty plea that con-
tradicts his testimony at a plea hearing. United States v.
Schuh, 289 F.3d 968, 975 (7th Cir. 2002); see also Walker,
447 F.3d at 1005.
The district court here conducted an exemplary plea
colloquy. The court asked questions beyond those re-
quired by Rule 11 to ensure that Mr. Weathington under-
stood the charges to which he pleaded guilty and the
sentence he would receive. It explained to Mr. Weathington
at least four times during the Rule 11 hearing that, if he
pleaded guilty, the court would sentence him to 22 years’
imprisonment under the plea agreement. The court in-
quired if Mr. Weathington understood that he and the
Government had agreed to a 22-year sentence. After
receiving affirmative answers to the questions, the court
reiterated, “So I have the option, I can accept the plea
and sentence you to 22 years in prison, or I can reject the
No. 07-1151 7
plea. And if I do that, I’d give you an opportunity to
change your mind.” Plea Hr’g Tr. at 14. Mr. Weathington
said that he understood.
The court also explained that the guidelines calcula-
tion would not affect his sentence. Mr. Weathington asked
if he would receive credit for his acceptance of responsibil-
ity. The court told Mr. Weathington that he was benefit-
ting by the Government’s agreement to drop some of the
original charges against him, but that, if Mr. Weathington
accepted the plea, “the sentence will be 22 years in prison
no matter how the guidelines get calculated.” Id. at 20.
Mr. Weathington said that he understood.
Mr. Weathington later contradicted his sworn testimony
when he claimed at the sentencing hearing that he did not
understand that he would receive a final sentence of 22
years and that the guidelines calculation would not affect
his sentence. The district court, having conducted a
thorough plea colloquy addressing just this issue, properly
credited Mr. Weathington’s statements at the plea hear-
ing when it rejected his motion to withdraw his guilty
plea. Schuh, 289 F.3d at 975; Walker, 447 F.3d at 1005.
In arguing that his mistaken belief about his sentence
should permit him to withdraw his plea, Mr. Weathing-
ton relies on United States v. Davis, 212 F.2d 264 (7th Cir.
1954). In Davis, a defendant filed a motion under
28 U.S.C. § 2255 to vacate judgment entered on a guilty
plea on the ground that his attorney had misinformed
him of the nature of the charge to which he had pleaded
guilty. Id. at 266. At the plea hearing, the district court
had not inquired at all whether the defendant under-
stood or was advised of the charges to which he was
pleading guilty. Id. at 267. On appeal, we held that Rule 11
permits the defendant to withdraw his plea when it
8 No. 07-1151
appears the plea was “made under some mistake or
misapprehension.” Id. (quotation omitted).
Davis is different from Mr. Weathington’s case in two
ways. First, in Davis, the defendant did not have notice of
the charge against him, which we found was a “serious
and substantial” mistake because a defendant’s right to
notice is granted by the Constitution and is “indispensable
to a valid plea.” Id. at 267. In contrast, the expectation of
receiving a lower sentence based on acceptance of responsi-
bility is not a constitutional right. Second, in Davis, the
defendant’s misunderstanding of the charge against him
was attributable to the failures of his attorney and the
court. Here, Mr. Weathington does not maintain that
his attorney misled him, nor could he argue that the
district court failed to ensure his understanding, given
the court’s extensive questioning during the plea colloquy.
B.
Mr. Weathington’s second argument is that his plea
was not voluntary because the poor conditions in the jail
in which he was being held, coupled with the close prox-
imity of trial, forced him to plead guilty. These are not
fair and just reasons to permit Mr. Weathington to with-
draw his guilty plea. Courts may allow defendants to
withdraw their guilty pleas if the defendants can show
they did not enter the pleas voluntarily and knowingly.
A defendant who simply asserts that his plea was not
voluntary, in contradiction of his testimony at the plea
hearing, however, faces “a heavy burden of persuasion.”
United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987).
At the plea hearing, the district court carefully assessed
whether Mr. Weathington was pleading voluntarily. When
No. 07-1151 9
Mr. Weathington said he wanted to continue the case
and not plead guilty that day, the court asked why
Mr. Weathington wanted a continuance and whether
he had talked to his counsel about his options.
Mr. Weathington said that he had spoken with counsel
but wanted more time to think about the plea agreement.
The court told Mr. Weathington that “nobody can make
you plead guilty” and explained, again, the consequences
of the plea agreement. Plea Hr’g Tr. at 10, 18. After
Mr. Weathington decided to proceed, the court asked him
if anyone had made any threats or promises to get him to
plead guilty. Mr. Weathington said no and he did not
mention either the conditions of the jail or the proximity
of his trial date.
Even though Mr. Weathington did not discuss at the
plea hearing the conditions of the jail in which he was
being held, the court allowed Mr. Weathington as much
time as he needed at the sentencing hearing to explain
how the circumstances in jail forced him to plead guilty.
He said only that he wanted to be moved to a cleaner
prison that would allow him visitation with his family. He
also protested that he had only three days to decide
whether to accept the plea agreement or to go to trial.
The district court properly concluded that
Mr. Weathington’s circumstances in jail were far from
unusual and did not make his plea involuntary. Cf.
Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir. 1994) (“The
Constitution does not require prison officials to provide the
equivalent of hotel accommodations or even comfortable
prisons.”). The court also correctly concluded that the
Government could impose a deadline for the plea agree-
ment and that the deadline provided sufficient time for
Mr. Weathington to make a knowing and voluntary
decision.
10 No. 07-1151
C.
Finally, Mr. Weathington contends that the district
court should have ordered a psychological examination
based on concerns he had raised about his mental health
at the plea and sentencing hearings. The district court is
required to order a hearing to determine a defendant’s
competency only when the court finds “reasonable cause
to believe” that the defendant may be suffering from a
mental disorder that makes him incompetent to the ex-
tent that he cannot understand the nature and conse-
quences of the proceedings against him or assist in his
defense. 18 U.S.C. § 4241(a); United States v. Grimes, 173
F.3d 634, 635-36 (7th Cir. 1999). The court may determine
informally whether reasonable cause exists by observing
the defendant’s demeanor and assessing his statements
during the plea colloquy and other interactions with the
court. Grimes, 173 F.3d at 636. If the preliminary inquiry
does not establish reasonable cause to believe the defen-
dant is incompetent, a hearing is not mandatory. United
States v. Graves, 98 F.3d 258, 261 (7th Cir. 1996).
The district court did not abuse its discretion in refus-
ing to order a psychological evaluation or to hold an
evidentiary hearing to determine Mr. Weathington’s
competence to plead guilty. Mr. Weathington’s behavior
did not suggest that he was incompetent, and he did not
invite the court’s attention to previous psychiatric rec-
ords or other sources showing a serious mental illness. See
Grimes, 173 F.3d at 636. Mr. Weathington informed the
court that he had suffered from narcolepsy and was
seeking mental health services in jail because he thought
he had a problem that caused him to commit crimes;
however, upon further questioning by the court, Mr.
Weathington said that he felt “all right” that afternoon
No. 07-1151 11
and that he was able to think clearly about his guilty plea.
Plea Hr’g Tr. at 5-6. Throughout the rest of the hearing,
Mr. Weathington provided cogent answers to the court’s
questions and engaged in discussion with the court about
options other than prison and about the consequences if
he did not plead guilty. Finally, Mr. Weathington con-
cedes that neither he nor his attorney suggested that his
mental problems affected his competence to plead guilty.
In fact, Mr. Weathington’s attorney said that she had “no
reason to doubt his competence or sanity.” Sent. Tr. at 70.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-8-07