United States v. Derrick John Hushman ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1919
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Derrick John Hushman, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: September 15, 2005
Filed: November 17, 2005
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Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
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PER CURIAM.
Derrick John Hushman appeals the district court’s judgment1 of March 16,
2005 sentencing him to 102 months’ imprisonment for conspiracy to distribute and
possession with the intent to distribute in excess of fifty grams of cocaine base.
Hushman appeals his conviction and sentence contending the district court abused its
discretion by not allowing him to withdraw his plea of guilty, that he should have
received a downward departure as a matter of discretion because of his minimal or
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
minor participation in the conspiracy, and that the district court abused its discretion
by imposing a sentence that did not reflect the need to “avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” We affirm.
Hushman argues that he presented a “fair and just” reason to withdraw his
guilty plea under Fed. R. Crim. P. 11(d)(2)(B): “A defendant may withdraw a plea of
guilty . . . (2) after the court accepts the plea, but before it imposes sentence if: . . . (B)
the defendant can show a fair and just reason for requesting the withdrawal.”
Hushman paid the attorney fees for his girlfriend Tammy Sherrell Cardriche, a co-
conspirator in this case; her attorney then referred him to a friend who he retained as
his counsel; Cardriche then assisted the government in prosecuting him. After
obtaining new counsel, Hushman argued that the referral from Cardriche’s counsel
created a conflict of interest for his first counsel and the district court should allow
him to withdraw his guilty plea.
At the Rule 11 hearing, Hushman gave an unqualified waiver of his right to
withdraw his guilty plea under Rule 11(d), agreeing that “if you plead guilty today,
you cannot withdraw your guilty plea . . . . You may be able to appeal the sentence
under some circumstances, but at the end of today’s hearing, if I accept the plea, then
you can’t withdraw your plea.” See United States v. Stricklin, 342 F.3d 849, 850 (8th
Cir. 2003) (affirming conviction based on waiver of Rule 11 right to withdraw guilty
plea).
Even if Hushman had not waived his right to withdraw his guilty plea, he did
not meet his burden of establishing a fair and just reason to withdraw. See United
States v. Embrey, 250 F.3d 1181, 1183 (8th Cir. 2001) (“A defendant bears the
burden of establishing” a “fair and just reason.”). Hushman’s first counsel had no
apparent conflict of interest and Hushman has provided no basis to claim a conflict
existed.
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The district court correctly decided that Hushman agreed in paragraph eight of
his plea agreement that he did not qualify for a downward departure as a minimal or
minor participant in the conspiracy. Further, Hushman admitted at his Rule 11
hearing that he sold the crack cocaine with Cardriche.
In paragraph eighteen of his plea agreement, Hushman waived his right to
appeal his sentence unless sentenced “above level 29,” which did not occur, and with
the understanding that the district court would sentence him “in conformity with the
United States Sentencing Guidelines.” Thus, Hushman waived his right to appeal any
discretionary sentencing decisions, including whether sentencing him to 102 months’
imprisonment while sentencing Cardriche to 78 months’ imprisonment created an
unwarranted sentencing disparity. The government explained that the disparity
results from Cardriche providing assistance to the government in prosecuting
Hushman.
Finally, at his Rule 11 hearing, the district court assured that Hushman
understood the plea agreement and the rights he was giving up and did so voluntarily.
Hushman understood he could not withdraw his plea. He understood the mandatory
minimum and maximum terms of imprisonment. He understood the guidelines. He
had no questions about the plea agreement. He was satisfied with his first attorney’s
services. He understood his constitutional rights. And the district court assured itself
of Hushman’s ability to understand the proceedings and agreements and that he was
not coerced.
Accordingly, the judgment is affirmed.
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