United States v. Allen

65 F. App'x 695
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 20, 2003
Docket02-5139
StatusUnpublished
Cited by2 cases

This text of 65 F. App'x 695 (United States v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allen, 65 F. App'x 695 (10th Cir. 2003).

Opinion

ORDER AND JUDGMENT **

BALDOCK, Circuit Judge.

Defendant Meldon Allen appeals the district court’s denial of his motion to withdraw his guilty plea. Defendant pled guilty to several charges related to a conspiracy to distribute illegal narcotics. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

A 153-count indictment charged Defendant Meldon Allen and several co-defendants with various criminal acts related to an alleged conspiracy to transport, store and distribute cocaine, cocaine base and marijuana, and to launder the profits associated with the venture. Defendant’s jury trial began on April 15, 2002. On the first day of trial, two Government witnesses, co-conspirator Gerald Herring and Drug Enforcement Administration Special Agent Darrell Smith, testified on direct examination. Following this testimony, which the parties agree was extremely damaging to Defendant’s case, Defendant and his attorney met with the Government. Defendant agreed to plead guilty to specific charges in the indictment. The Government agreed to forego prosecution of the remaining charges. Defendant then indicated to the district court his intent to plead guilty. After questioning Defendant on the knowing and voluntary nature of his plea, the court dismissed the jury.

The following morning, Defendant pled guilty to three charges: Count 1, conspiracy to possess with intent to distribute cocaine in excess of five kilograms in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii),(iii); Count 12, maintaining a place where controlled substances are stored and controlled in violation of 21 U.S.C. § 856; and Count 152, investment of illegal drug profits in violation of 21 U.S.C. § 854. Defendant entered his guilty plea without the benefit of a plea agreement. But, by pleading guilty, Defendant avoided prosecution for offenses carrying a likely sentence of life imprisonment.

The Presentence Investigative Report (“PSR”) issued July 12, 2002 calculated a sentencing range of 235 to 293 months imprisonment based upon a total offense level 38 and a criminal history category I. On July 26, 2002, Defendant filed a motion to withdraw his guilty plea, asserting the plea was not intelligent and voluntary because it was made in haste during trial. The district court held a hearing on Defendant’s motion. After hearing argument, the court denied the motion. Specifically, *697 the district court analyzed each of the seven factors this Court identified in United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), and concluded the factors weighed against allowing Defendant to withdraw his plea. The district court then sentenced Defendant to 252 months imprisonment.

II.

We review for an abuse of discretion the district court’s denial of Defendant’s motion to withdraw his guilty plea. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.2000). Prior to sentencing, the district court “may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Fed.R.Crim.P. 32(e). 1 The burden is on the defendant to establish a “fair and just reason” for the withdrawal of the plea. Siedlik, 231 F.3d at 748 (citations omitted).

Although courts generally view with favor a defendant’s motion to withdraw a plea, such motions are not automatically granted. United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990). As this Court previously stated:

Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, still the decision thereon is within the sound discretion of the trial court. Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion.

Siedlik, 231 F.3d at 748 (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir.1990)). Thus, “we will not reverse absent a showing that the trial court acted ‘unjustly or unfairly.’ ” Id. (quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999)).

This Court has identified seven factors the district court should consider in deciding whether to allow a defendant to withdraw a guilty plea: “(1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) whether the granting of the motion would cause a waste of judicial resources.” Gordon, 4 F.3d at 1572. The district court expressly considered each of these factors in denying Defendant’s motion. After reviewing the record, we agree with the district court that these factors weigh against allowing Defendant to withdraw his guilty plea.

Although Defendant asserts his innocence, it is a selective assertion. As the district court noted, Defendant contradicts only certain elements of the Government’s case, such as the amount of cocaine base attributable to his conspiracy. Defendant does not assert he did not participate in a conspiracy to possess and distribute illegal narcotics. In his plea agreement and plea allocution, Defendant stated facts sufficient to support his conviction on each charge. Defendant’s failure to assert actual innocence weighs against granting his motion.

The district court determined the Government would be prejudiced by permitting Defendant to withdraw his plea. The court specifically found the Government had fully revealed its trial strategy, includ *698 ing the order or proof and the identification of exhibits, on the first day of trial. The prejudice to the Government weighs against granting Defendant’s motion. Defendant also waited approximately three months to file a motion to withdraw his guilty plea.

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Related

United States v. Allen
482 F. App'x 366 (Tenth Circuit, 2012)

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Bluebook (online)
65 F. App'x 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allen-ca10-2003.