United States v. Pirpich

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 9, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
No. 14-7015
v. (D.C. No. 6:12-CR-00095-JHP-1)
(E.D. Oklahoma)
LARRY EUGENE PIRPICH, JR.,
Defendant – Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and Appellant, Larry Eugene Pirpich, Jr., pled guilty to one
count of conspiracy to manufacture methamphetamine and multiple counts of
interstate travel in aid of racketeering enterprises. Arguing that the district court
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
abused its discretion in denying his motion to withdraw his guilty plea, Mr.
Pirpich seeks to have his sentence vacated and the matter remanded to permit him
to withdraw that guilty plea. For the following reasons, we affirm Mr. Pirpich’s
conviction and sentence.
BACKGROUND
From approximately January 2010 to July 2012, Mr. Pirpich and his wife,
Shila Ann Parker, conspired to possess and distribute pseudoephedrine, for the
purpose of manufacturing methamphetamine. They did this in the following
manner: Federal law prohibits an individual from purchasing more than nine
grams of pseudoephedrine in a thirty-day period. Pharmacies require the
presentation of a photo identification for all pseudoephedrine purchases. All such
purchases are logged in an electronic database which is available to state and
federal law enforcement.
Mr. Pirpich and Ms. Parker attempted to circumvent the tracking database
and buy pseudoephedrine in excess of the legal limits. They did this by various
methods, including the presentation of government-issued identification cards
from various states, the purchase of pseudoephedrine from different pharmacies in
the same city on the same date, and the utilization of associates to purchase
pseudoephedrine for them. They also occasionally traveled to pharmacies in other
parts of Oklahoma, Texas, Colorado and elsewhere. They were eventually
detained and arrested by law enforcement authorities in Oklahoma.
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On March 1, 2013, Mr. Pirpich pled guilty to all counts pursuant to a
written plea agreement. The plea agreement contained the following provisions:
the maximum possible sentence for the drug conspiracy count was “imprisonment
for a period of not more than 20 years . . .” and the maximum sentence for each
count of traveling in aid of racketeering was “imprisonment for a period of not
more than 5 years . . .” Plea Agreement at 2; R. Vol. I at 95. The agreement also
included a stipulation regarding a pre-existing Texas state conviction against Mr.
Pirpich:
Pursuant to [United States Sentencing Commission, Guidelines
Manual (“USSG”)] § 5G1.3, the parties agree that a reasonable
punishment for the instant offense is a sentence imposed concurrently
with an undischarged term of imprisonment in Grayson County, State
of Texas, Case No. 061522. Further, the parties agree that a
reasonable punishment would result from applying credit for time
already served in the Defendant’s incarceration in Case No. 061522
to the instant offense.
Id. at 11; R. Vol. I at 104 (emphasis added).
The agreement further included provisions acknowledging Mr. Pirpich’s
understanding of the plea and the plea agreement, as well as his satisfaction with
the services of his attorney:
The defendant has been represented by counsel and is fully satisfied
with the services rendered by the defense attorney(s) and agrees that
such representation has been competent legal representation and has
provided the best result for the defendant possible under the
circumstances of his case. The defendant expressly acknowledges
that counsel has explained Defendant’s trial, sentencing, appellate
and post-conviction rights; that defendant understands these rights;
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and that defendant knowingly and voluntarily waives and
relinquishes those rights as set forth above.
Id. at 7-8; R. Vol. I at 100-01.
I have read this agreement and carefully reviewed every part of it
with my attorney. I fully understand it and voluntarily agree to it
without reservation. No promises, agreements, understandings, or
conditions have been made or entered into in connection with my
decision to plead guilty except those set forth in this plea agreement.
I am satisfied with the legal services provided by my attorney in
connection with this plea agreement and matters related to it. I do
this of my own free will. No threats have been made to me, nor am I
under the influence of anything that could impede my ability to fully
understand this plea agreement.
Id. at 13; R. Vol. I at 106.
The plea agreement also contained a sentence stating that, “[i]f the Court
imposes a sentence with which the defendant is dissatisfied, the defendant will
not be permitted to withdraw any guilty plea for that reason alone.” Id. at 8; R.
Vol. I at 101. It further included a waiver of appellate and post-conviction rights,
including the right to collaterally attack the conviction and sentence “except for
claims based on ineffective assistance of counsel which challenge the validity of
the guilty plea or this waiver.” Id. at 7; R. Vol. I at 100.
The district court scheduled Mr. Pirpich for sentencing on September 6,
2013. At that sentencing hearing, Mr. Pirpich’s defense counsel, Robert
Ridenour, advised the court that he and Mr. Pirpich were having “irreconcilable
differences with regard to our understanding of certain aspects of the sentencing
process and the sentence to be imposed today.” Tr. of Sent. Hr’g at 4; R. Vol. II
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at 78. Mr. Ridenour accordingly asked the court to appoint new counsel for Mr.
Pirpich. The court permitted Mr. Ridenour to withdraw as counsel, and ordered
new defense counsel to file a motion regarding the nature of the disagreement
between Mr. Ridenour and Mr. Pirpich.
Some three months later, on December 12, 2013, Mr. Pirpich’s new defense
counsel, Roger Hilfiger, filed a motion to withdraw Mr. Pirpich’s guilty plea and
rescind the plea agreement. In the motion, Mr. Pirpich claimed that Mr. Ridenour
had misinformed him as to the amount of credit he would receive for his Texas
state sentence against his federal sentence. Attached to the motion as “Exhibit A”
was a piece of paper from a legal pad with handwritten computations of the
Guideline sentencing computation, purportedly written by former counsel, Mr.
Ridenour. Mr. Pirpich also claimed that, since none of the counts against him
were dismissed and since he did not get a reduction in his sentence calculation for
acceptance of responsibility, he “did not receive any benefit from the agreement”
in exchange for his “waiv[er] [of] all his rights.” Mot. to Withdraw Plea/Plea
Agreement at 3; R. Vol. I at 110. 1
The district court held an evidentiary hearing on December 13, 2013, at
which both Mr. Ridenour and Mr. Pirpich testified. Mr. Pirpich testified that,
1
Mr. Pirpich makes no argument on appeal about the denial of any further
sentence reduction for acceptance of responsibility, or the dismissal of counts.
His appellate argument is solely directed to the calculation of credit for his Texas
sentence against his federal sentence.
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when Mr. Ridenour met with him in February 2012 to discuss a plea, Mr. Pirpich
asked Mr. Ridenour to write down the terms. Mr. Pirpich claimed that he
understood that the particular piece of paper with Mr. Ridenour’s written terms
(Ex. A) was his actual plea agreement. He further stated that he understood that
his likely federal sentencing range would be 168 to 188 months, and that his
entire Texas sentence of nine years (108 months) would be deducted from his
federal sentence. Based upon this understanding, Mr. Pirpich claimed he hoped
his federal sentence would be sixty months. Mr. Pirpich’s attorney specifically
stated that he was “not saying that Mr. Ridenour was ineffective[;] . . . we’re not
making that allegation.” Tr. of Hr’g at 11; R. Vol. II at 21.
Mr. Pirpich admitted that Ex. A was not signed by him, by Mr. Ridenour or
by the Assistant United States Attorney. He further admitted that he had heard, at
his change of plea hearing, an estimate of his sentencing range as being from 188
to 235 months, but he did not, at that time, mention to the court Ex. A, with its
handwritten calculation of a substantially lower sentence. He also indicated his
understanding that the district court would determine his sentence and that the
court was not bound by the plea agreement. Mr. Pirpich further recognized that
the presentence report (“PSR”) prepared by the United States Probation Office did
not reflect the full reduction in his sentence (based on his Texas sentence) Mr.
Pirpich believed he was getting.
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Despite all these admissions, Mr. Pirpich further testified that he relied on
Ex. A – the handwritten note – and did not realize until just minutes before the
sentencing hearing that he would only get credit for the twenty-two months he
had actually served in Texas. Additionally, Mr. Pirpich did not claim that Mr.
Ridenour had advised him incorrectly; rather, he stated that he “didn’t understand
him correctly.” Tr. of Hr’g at 20; R. Vol. II at 30. Mr. Pirpich admitted that Mr.
Ridenour thoroughly went over the written plea agreement with him before they
both signed it. He further acknowledged that the written plea agreement did not
include an agreement that he would receive a sixty-month sentence, and he
understood that “ultimately it’s up to this Court to determine what [his] sentence
is.” Id. at 28; R. Vol. II at 38.
Ultimately, Mr. Pirpich indicated that he needed a little time to consider his
options, but that even if he were allowed to rescind his plea agreement, he would
probably plead guilty anyway. He also indicated that, had he proceeded to trial
and been found guilty, his sentence would likely have been 240 months.
Mr. Ridenour also testified at the December 13 hearing. While he could
not recall the specifics of his meetings with Mr. Pirpich, he testified that his usual
practice was to go through the plea agreement with his clients. He stated that he
did not “see at any time where [he] would have communicated . . . to Mr. Pirpich
[that his sentence would be sixty months].” Id. at 53; R. Vol. II at 63. He further
stated that he could not “envision [him]self telling [Mr. Pirpich] he would get
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credit for a sentence he has not even served.” Id. at 58; R. Vol. II at 68. Indeed,
he testified that the stipulation in the plea agreement meant that “he’d [Mr.
Pirpich would] get credit for the time that he had served on the state sentence.”
Id. at 52; R. Vol. II at 62 (emphasis added). Mr. Ridenour finally testified that,
with respect to Ex. A, a reasonable interpretation was that he (Mr. Ridenour) was
communicating to Mr. Pirpich that he might serve 108 months in state prison, and
would be left thereafter with serving sixty more months in federal prison, based
on the state and federal sentences running concurrently.
Before it concluded the hearing, the court informed the parties that it would
give them an opportunity to submit additional briefs on the matter before the
court ruled. Mr. Pirpich’s brief reiterated his argument that Mr. Ridenour had
miscalculated his sentence and the application of USSG § 5G1.3: “Defendant was
led to believe that USSG § 5G1.3 would apply to the total sentence received of
nine years (108 months) from the State of Texas, and this would be deducted as a
credit to his federal sentences which was calculated as 210 months under the
guidelines.” Br. in Support of Mot. to Withdraw at 2-3; R. Vol. I at 115-16. In
response, the government’s brief addressed the seven factors set forth in United
States v. Gordon, 4 F.3d 1567 (10th Cir. 1993), to determine whether a defendant
has met his burden of showing a fair and just reason for being allowed to
withdraw a prior guilty plea.
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The court then issued an order denying Mr. Pirpich’s motion to withdraw
his guilty plea and rescind the plea agreement. It ruled as follows:
Fed. R. Crim. Proc. 11(d)(2)(B) provides that after a plea is
accepted but before sentencing a defendant may withdraw his plea if
he can show a “fair and just reason” for requesting the withdrawal.
The burden to show a fair and just reason is on the Defendant and
seven factors have been identified by the Tenth Circuit in
determining whether a defendant has met this burden. United States
v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). Those factors are:
(1) whether the defendant has asserted his innocence; (2) prejudice to
the government; (3) delay in filing defendant’s motion; (4)
inconvenience to the court; (5) defendant’s assistance of counsel; (6)
whether the plea is knowing and voluntary; and (7) waste of judicial
resources. Id.
After consideration of the testimony presented at the motion
hearing on December 13, 2013, argument of counsel, and review of
the briefs filed in support and in opposition to the motion, the Court
finds the Defendant has failed to meet his burden of proof that a fair
and just reason exists to allow him to withdraw his guilty plea.
Specifically, and with regard to factors identified in United States v.
Gordon,: (1) the Defendant has not asserted his innocence in this
matter; (2) the Government asserts, and the Court agrees, that the
Government would suffer prejudice if the Defendant’s motion were
granted; (3) previous counsel provided competent representation; and
(4) after considering the plea colloquy, the Court finds the
Defendant’s plea was knowing and voluntary.
Order at 1-2; R. Vol. I at 130-31. The court observed that, although Mr. Pirpich
claimed that his prior counsel promised a sixty-month sentence, his counsel
refuted that claim at the motions hearing. Moreover, “the Court also notes that, ‘a
miscalculation or erroneous sentence estimation by defense counsel is not a
constitutionally deficient performance rising to the level of ineffective assistance
of counsel.’” Id. at 2 (quoting United States v. Estrada, 849 F.2d 1304, 1307
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(10th Cir. 1988)). 2 The court then denied Mr. Pirpich’s motions to rescind his
plea agreement and to withdraw his guilty plea.
The court subsequently sentenced Mr. Pirpich to 188 months’ imprisonment
on Count One (conspiracy) and sixty months each on Counts Two through Eleven
(interstate travel), to be served concurrently with each other and with the sentence
Mr. Pirpich was currently serving in Texas. The court also imposed three years of
supervised release, ordered Mr. Pirpich to pay a total of $1,100 in special
assessments, and ordered him to forfeit $3,000. This appeal followed.
DISCUSSION
We begin by noting that Mr. Pirpich’s plea agreement contained a waiver of
all direct appeals as well as the “right to collaterally attack the conviction and
sentence pursuant to 28 U.S.C. § 2255, except for claims based on ineffective
assistance of counsel which challenge the validity of the guilty plea or this
waiver.” Plea Agreement at 7; R. Vol. I at 100. Mr. Pirpich’s claims arguably
fall within the stated exception to the appellate waiver. Moreover, the
government does not urge us to enforce the appellate waiver. “A defendant’s
waiver of the right to appeal may itself be waived by the government.” United
States v. Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006); see also United
States v. Clark, 415 F.3d 1234, 1238 n.1 (10th Cir. 2005) (deciding to refuse to
2
The above quotation actually first appeared in United States v. Gordon, 4
F.3d 1567, 1570 (10th Cir. 1993). It has been quoted numerous times since then.
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enforce a defendant’s waiver of the right to appeal because the government
“neither filed a motion to enforce [the defendant’s] plea agreement, nor argued in
its brief that we should dismiss [the defendant’s] appeal on the basis of her
appellate rights waiver”). We therefore proceed to the merits of Mr. Pirpich’s
argument.
Mr. Pirpich argues the district court abused its discretion when it denied his
motion to withdraw his guilty plea. 3 As the district court noted, a defendant may
withdraw a guilty plea before sentencing if he “can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have identified
seven factors which guide a court’s decision whether to grant such withdrawal:
(1) whether the defendant has asserted his innocence, (2) prejudice to
the government, (3) delay in filing defendant’s motion, (4)
inconvenience to the court, (5) defendant’s assistance of counsel, (6)
whether the plea is knowing and voluntary, and (7) waste of judicial
resources.
Sanchez-Leon, 764 F.3d at 1258 (quoting United States v. Hamilton, 510 F.3d
1209, 1214 (10th Cir. 2007)). “We have also ‘suggested an additional factor to
3
Both parties agree that we review the district court’s decision for an abuse
of discretion. United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir.
2014) (“Whether to permit withdrawal ‘always and ultimately lies within the
sound discretion of the district court to determine on a case by case basis when
the standard is and isn’t met.’” (quoting United States v. Soto, 660 F.3d 1264,
1267 (10th Cir. 2011) (further quotation omitted))). “Our review of a district
court’s denial of a motion to withdraw a guilty plea is for abuse of discretion.”
Id. (further quotation omitted).
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consider: the likelihood of conviction.’” Id. (quoting United States v. Carr, 80
F.3d 413, 421 n.5 (10th Cir. 1996)).
We have further stated that, “[i]f the defendant fails to carry his or her
burden on asserted innocence, validity of the plea (whether it was given
knowingly and voluntarily), and ineffective assistance of counsel, the court need
not address ‘the remaining factors . . . because these [remaining] factors speak to
the potential burden on the government and the court, rather than the defendant’s
reason for withdrawal.’” Id. (quoting Hamilton, 510 F.3d at 1217).
In this case, Mr. Pirpich does not assert his innocence. Indeed, he
conceded that, if he is permitted to withdraw his guilty plea, he would likely
plead guilty again rather than face trial. His argument about the plea agreement
seems to encompass both the validity of his plea and the effectiveness of his
counsel, in that he argues that, based on his attorney’s incorrect advice when he
signed the plea agreement, he misunderstood the interplay between his state and
federal sentences and the impact of his state sentence on his federal sentence.
Thus, we address this issue as involving both Gordon factors.
“When a defendant’s challenge to a guilty plea is based on ineffective
assistance of counsel, we apply the two-part test established in Strickland v.
Washington, 466 U.S. 668, 687 (1984).” Hamilton, 510 F.3d at 1216; see also
Hill v. Lockhart, 474 U.S. 52, 58 (1985). To prevail under that standard, Mr.
Pirpich must show both that his counsel’s performance was deficient and that this
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deficiency prejudiced his defense. Hamilton, 510 F.3d at 1216. We have stated
that, to show prejudice, Mr. Pirpich “‘must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’” Id. (quoting United States v. Carr, 80
F.3d 413, 418 (10th Cir. 1996)). As indicated, Mr. Pirpich himself has admitted
that, had he been permitted to withdraw his guilty plea, he would most likely have
pled guilty again, rather than proceed to trial.
Furthermore, Mr. Ridenour, an experienced criminal defense attorney,
testified that he did not promise Mr. Pirpich a sixty-month sentence. And, even
had he made such a promise, “[a] miscalculation or erroneous sentence estimation
by defense counsel is not a constitutionally deficient performance arising to the
level of ineffective assistance of counsel.” United States v. Parker, 720 F.3d 781,
787 n.9 (10th Cir. 2013) (quoting United States v. Gordon, 4 F.3d 1567, 1570
(10th Cir. 1993)); see also United States v. Gigley, 213 F.3d 509, 517 n.3 (10th
Cir. 2000). We thus conclude that Mr. Pirpich has demonstrated neither deficient
performance nor prejudice.
It is also clear that Mr. Pirpich’s plea, and his entry into the plea
agreement, was knowing and voluntary. The district court concluded as much:
“after considering the plea colloquy, the Court finds the Defendant’s plea was
knowing and voluntary.” Order at 2; R. Vol. I at 131. Nothing in the record or in
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Mr. Pirpich’s brief convinces us that the district court’s finding and conclusion
are wrong.
In sum, Mr. Pirpich has failed to carry his burden of demonstrating that
there existed a fair and just reason for him to withdraw his guilty plea and the
plea agreement. The district court carefully considered his argument, applying
the appropriate legal standard to the facts and record. Mr. Pirpich has utterly
failed to show that the district court abused its discretion in denying his request to
rescind his plea agreement and withdraw his guilty plea.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order denying
Mr. Pirpich’s request to rescind his plea agreement and withdraw his guilty plea.
We further AFFIRM his conviction and sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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