United States v. Gardner

Case: 20-50481 Document: 00516199335 Page: 1 Date Filed: 02/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 11, 2022
No. 20-50481 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonio Maurice Gardner,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 6:18-CR-330-1
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
Our prior panel opinion, United States v. Gardner, 15 F.4th 382 (5th
Cir. 2021), is WITHDRAWN and the following opinion is
SUBSTITUTED therefor:
Antonio Maurice Gardner urges that he pled guilty to illegal
possession of drugs without moving to suppress their seizure on his counsel’s
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50481 Document: 00516199335 Page: 2 Date Filed: 02/11/2022
No. 20-50481
advice that he would raise the legality of the search in his objections to the
presentence investigation report. Without a hearing or response from the
government, the district court denied his new counsel’s motion to allow
Gardner to withdraw his plea. The district court eventually sentenced
Gardner to 240 months imprisonment and six years of supervised release.
We vacate and remand.
“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). There is no “absolute right to withdraw [a] guilty plea.” Id.“However, a district court may, in its discretion, permit withdrawal before
sentencing if the defendant can show a ‘fair and just reason.’” Id. (citing
Fed. R. Crim. P. 11(d)(2)). Courts in our circuit consider the seven Carr
factors when deciding whether the defendant has met his burden, namely
whether:
(1) the defendant asserted his innocence, (2) withdrawal would
cause the government to suffer prejudice, (3) the defendant
delayed in filing the motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was
available, (6) the original plea was knowing and voluntary, and
(7) withdrawal would waste judicial resources.
Id. (citing United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984)). “The
district court’s decision to permit or deny the motion is based on the totality
of the circumstances . . . [but] the district court is not required to make
findings as to each of the Carr factors.” Id. (citing United States v. Brewster,
137 F.3d 853, 858 (5th Cir. 1998)).
“The burden of establishing a fair and just reason for withdrawing a
guilty plea remains at all times on the defendant.” United States v. Badger,
925 F.2d 101, 104 (5th Cir. 1991). In Badger, we held that the district court
did not abuse its discretion in denying the defendant’s motion to withdraw
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No. 20-50481
his guilty plea because the defendant “did not attempt to invoke any of the
Carr factors to support his Rule [11(d)(2)] motion[].” Id. We concluded that
the district court did not have an obligation to address the Carr factors sua
sponte. See id. (“[W]e did not intend to require the district court to make a
specific finding as to each of the seven factors every time a defendant requests
to withdraw a guilty plea.”).
In contrast, here, Gardner expressly discussed some of the Carr
factors in his motion to withdraw his guilty plea. He alleged that the plea was
involuntary due to the ineffectiveness of his former counsel; 1 that the
controlled substances seized from his house were the product of an
improperly executed “knock and talk”; that he had told his lawyer he wanted
to file a suppression motion because it would end the Government’s case
against him, but counsel told him “that a motion to suppress would be filed
after the entering of the plea”; and that he continued to ask his lawyer about
filing a motion to suppress, but counsel finally told Gardner that moving to
suppress was no longer an option, and moved to withdraw. Based on those
1
Close assistance of counsel under the Carr factors is distinct from an ineffective
assistance of counsel claim. United States v. Urias-Marrufo, 744 F.3d 361, 365 (5th Cir.
2014); United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009). To the extent that
Gardner raises a claim for ineffective assistance, those claims are generally more
appropriately addressed on collateral review, rather than on direct appeal. We express no
opinion on such a claim at this juncture, other than to note that Gardner’s allegations may
bear both on application of the Carr factors to his instant motion and on an eventual claim
for ineffective assistance lodged under 28 U.S.C. § 2255. E.g., Hill v. Lockhart, 474 U.S.
52, 56 (1985) (“Where, as here, a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” (internal quotation marks and citation omitted)); United
States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983) (“[W]here . . . counsel has induced his
client to plead guilty based on patently erroneous advice, we may find that the plea itself
was involuntary and unknowing.”); see Strickland v. Washington, 466 U.S. 668 (1984)
(setting forth two-part test for claims for ineffective assistance of counsel).
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allegations, Gardner argued that he had demonstrated a “fair and just reason
for withdrawing his plea.” Although Gardner referred to the factors under
the Sixth Circuit’s case law, his motion nevertheless clearly addresses at least
Carr’s first, second, and third factors, and raises serious arguments about the
effectiveness of counsel that touch on the fifth and sixth Carr factors as well.
The Government did not respond to Gardner’s motion and thus did not
challenge his factual assertions. Of course, the Government had little time
to do so; the day after Gardner filed his motion, the district court, in a one-
word order, denied his request to withdraw the plea, without an evidentiary
hearing.
Because the district court provided no analysis regarding Gardner’s
arguments or the court’s application of the Carr factors beyond a single-word
order—“DENIED”—we cannot assess the court’s denial of Gardner’s
motion for an abuse of discretion. On the record before us, we decline to
weigh the Carr factors in the first instance. See United States v. Houston, 792
F.3d 663, 669 (5th Cir. 2015) (“[W]e are a court of review, not first view.”).
Instead, we REMAND for the district court to consider Gardner’s
arguments under the Carr framework and for such other proceedings,
including any evidentiary hearing, as the court deems proper. And we note
that nothing in this opinion forecloses any of Gardner’s rights under 28
U.S.C. § 2255.
VACATED AND REMANDED.
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