United States v. Dana Ross

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 6, 2019
• Docket: 17-11306
• Status: Unpublished

Opinion

Case: 17-11306 Date Filed: 06/06/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11306 Non-Argument Calendar ________________________

D.C. Docket No. 4:16-cr-00266-WTM-GRS-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANA ROSS,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(June 6, 2019)

Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-11306 Date Filed: 06/06/2019 Page: 2 of 11

Dana Ross appeals his conviction for possession of a firearm by a convicted

felon. He contends the district court abused its discretion by denying, without

holding an evidentiary hearing, his pro se motion to withdraw his guilty plea. We

disagree and affirm.

I.

A.

In August 2016, a federal grand jury indicted Ross for (1) possession of a

firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2); (2) possession of a

controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1); and (3) using

and carrying a firearm during and in relation to a drug-trafficking offense, 18

U.S.C. § 924(c)(1)(A)(i).

In September 2016, Ross’s appointed counsel moved to withdraw. Counsel

stated Ross had indicated he did not wish for counsel to continue representing him,

and counsel thus believed he was unable at the time to represent Ross effectively.

At an October 2016 hearing, the magistrate judge asked Ross whether he wanted to

excuse counsel. Ross said no. Ross explained that his problem with counsel was

that when he told counsel he wanted a bill of particulars,1 counsel explained asking

1 See Fed. R. Crim. P. 7(f). “The purpose of a true bill of particulars is threefold: ‘to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.’” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)). “A bill of particulars, properly viewed, supplements an indictment by providing the defendant with 2 Case: 17-11306 Date Filed: 06/06/2019 Page: 3 of 11

for one was a “waste of time.” The magistrate judge explained to Ross that in a

case such as this one, where the government’s indictment tracks the language of

the statutes, the government usually gives full discovery to the defendant. In such

situations, the court grants “[v]ery, very few” bills of particulars. Ross also stated

that he wanted counsel to file a motion to suppress. Counsel responded that his

review of the record had convinced him there was no basis to support such a

motion, which he had explained to Ross. The magistrate judge explained to Ross

that an attorney cannot be forced to file a motion he believes has no merit. The

magistrate judge further opined that the facts suggested counsel was correct about

the merits of any motion to suppress, but he allowed the two to discuss the matter

together after the hearing. The judge denied the motion to withdraw.

Ross later pleaded guilty, under a written plea agreement, to possession of a

firearm by a convicted felon. The plea agreement laid out the elements of the

offense and the facts that satisfied those elements. Ross agreed to the accuracy of

those facts. The agreement noted that any sentence up to the statutory maximum

was possible and that Ross could not withdraw his plea if he received a more

severe sentence than he expected. Ross affirmed that counsel had “represented

him faithfully, skillfully, and diligently, and [that] he [was] completely satisfied

information necessary for trial preparation. Generalized discovery, however, is not an appropriate function of a bill of particulars and is not a proper purpose in seeking the bill.” Id. 3 Case: 17-11306 Date Filed: 06/06/2019 Page: 4 of 11

with the legal advice given and the work performed by his attorney.” Ross signed

the agreement directly below the following provision: “I have read and carefully

reviewed this agreement with my attorney. I understand each provision of this

agreement, and I voluntarily agree to it. I hereby stipulate that the factual basis set

out therein is true and accurate in every respect.”

At the change-of-plea hearing in October 2016, the district court restated

that final portion of the plea agreement. It reminded Ross that he was under oath

and that lying would constitute perjury, which might subject Ross to additional

penalties. It explained that if Ross needed anything clarified, he simply needed to

ask. It told Ross that “the entire purpose of this proceeding is, almost for the last

time, to allow you to know the importance and the severity of the step that you’re

about to make and to impress upon you the loss of many of your legal rights.”

Those rights included, as the court explained, a speedy and public trial before an

impartial jury at which the government would have to prove its case beyond a

reasonable doubt. Ross affirmed he could read write and understand English; was

not presently under psychiatric care; had not had a drink in years; and had last

unlawfully consumed a controlled substance (Xanax) nine months prior to the

hearing.

The district court asked Ross whether the fact that he had a court-appointed

lawyer, rather than one he retained himself, influenced his decision to plead guilty.

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Although he initially said it did influence his decision, after consulting with

counsel, he changed his answer and said it did not. When the court asked whether

Ross had told counsel everything about the charges against him, Ross said he had

not because Ross had “really just got the paperwork.” The court remarked that it

sounded like Ross did not know whether he wanted to plead guilty. It told Ross no

one was forcing him, and if he wanted to go to trial, the judge would be happy to

try the case. Ross affirmed he wished to plead guilty. He also declined an offer

from the court for an opportunity to sit down with counsel and tell counsel

whatever he had not told him.

When the district court asked if counsel had gone over the case with Ross

and explained possible defenses, Ross said no. The court then indicated it would

keep the case on the calendar for trial. Counsel asked for an opportunity to speak

to Ross. After the two conferred, counsel asked Ross on the record: “[E]ven

though there are things that we could discuss that we have not discussed, including

possibly a serial number on a firearm, have I gone over your case with you, the

charges, the potential punishments of each charge?” Ross said counsel had done

so. The court then confirmed that Ross was satisfied with counsel’s explanations

and the amount of time he had had over the course of the proceedings to speak

with counsel.

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The district court explained that the maximum sentence would ordinarily be

“a sentence of imprisonment of not more than 10 years, a fine of not more than

$250,000, supervised release of not more than 3 years, and a $100 special

assessment.” But, the court continued, if Ross had three previous convictions of a

violent felony or a serious drug offense or both, committed on different occasions,

“then the possible sentence would be imprisonment of not less than 15 years and

not more than life imprisonment, a fine of not more than $250,000, supervised

release of not more than 5 years, and a $100 special assessment.” Ross confirmed

that he had tried to learn how the Sentencing Guidelines work and that counsel had

explained the Guidelines to him. He then stated his guilt on the record, affirming

that he was in fact guilty and admitting the charges made against him. A

government witness testified that Ross had pleaded guilty, under a separate

indictment, to four different counts of violating the Georgia Controlled Substance

Act. Ross did not object and acknowledged he understood. The court found there

was a factual basis for the guilty plea and ordered it be entered.

At one point, the district court put the situation in clear terms: “[D]o you

understand that by pleading guilty you’re giving up all these rights and, if I accept

this plea, that will end this case except for sentencing that will take place several

months from now? Do you understand that?” Ross responded, “Yes, sir.”

B.

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Nevertheless, in March 2017, Ross filed pro se a letter to the district court

requesting to withdraw his guilty plea. The letter stated:

I would like to have what I’m requesting put on the record. I am sorry Honorable, but I have been submitted to a great deal of miscarriage of justice, also my due process has been violated, also I was under coercion an [sic] duress. I would like to have a hearing of why I want to withdraw my guilty plea[.]

At sentencing a few days later, Ross complained about his counsel. He said

counsel had not meaningfully gone over the presentence report with him—which

counsel denied, noting he had filed objections to the report and asserting he had

gone over it with Ross several times in detail. Ross also stated counsel was

“incompetent from the beginning.” But he said he had no other objections to the

presentence report.

The district court overruled the separate objections counsel had made to the

report. It then imposed a sentence of 188 months, the low end of the Guideline

range of 188 to 235 months.

As for Ross’s letter, the court remarked, “[Y]ou’ve written a letter asking to

withdraw your guilty plea, and that -- that’s not going to happen. The Court’s not

going to allow you to do that. You made the plea willingly and voluntarily, and so

we’re proceeding with court today.”

This timely appeal followed.

II.

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Ross contends the district court abused its discretion in failing to hold the

hearing he requested in his letter attempting to withdraw his guilty plea.

A defendant may withdraw a guilty plea after the court accepts the plea but

before the court imposes sentence if “the defendant can show a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining

whether the defendant has shown “a fair and just reason,” the district court “may

consider the totality of the circumstances surrounding the plea.” United States v.

Buckles, 843 F.2d 469, 471–72 (11th Cir. 1988). “Factors analyzed include

(1) whether close assistance of counsel was available; (2) whether the plea was

knowing and voluntary; (3) whether judicial resources would be conserved, and

(4) whether the government would be prejudiced if the defendant were allowed to

withdraw his plea.” Id. at 472 (citation omitted). “The good faith, credibility and

weight of a defendant’s assertions” in support of a withdrawal of a plea under Rule

11(d) are issues for the district court. Id.

We review a district court’s refusal to hold an evidentiary hearing for abuse

of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). “It

does not amount to abuse of discretion when a court has conducted extensive Rule

11 inquiries prior to accepting the guilty plea.” Id. The same standard of review

applies to denial of a request to withdraw a guilty plea. Id. “There is no abuse of

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discretion unless the denial is ‘arbitrary or unreasonable.’” Id. (quoting United

States v. Weaver, 275 F.3d 1320, 1328 n.8 (11th Cir. 2001)).

The district court did not abuse its discretion in denying Ross’s requested

evidentiary hearing. The court’s thorough questioning and Ross’s answers at the

change-of-plea hearing demonstrate that Ross knowingly and voluntarily pleaded

guilty. Ross’s subsequent claim of coercion, unsupported by any reasoning or new

evidence, failed to convince the district court, as it fails to convince us, that he was

entitled to an evidentiary hearing.

At the change-of-plea hearing, the district court correctly noted that Ross

affirmed in his written plea agreement that he was guilty. That agreement also

stated that Ross was satisfied with his counsel. The court also confirmed no one

had forced him to plead guilty. It expressly found Ross was competent, inquiring

into his education, psychiatric condition, and use of mind-altering substances. It

ensured Ross understood the charges against him and that his attorney had

explained them. It told Ross about the many rights he was giving up by pleading

guilty. It made sure Ross understood the potential maximum sentences. This

probing inquiry convinced the district court that Ross was guilty and that he

knowingly and voluntarily intended to plead guilty.

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Ross’s pro se letter gave no valid reason to allow him to rescind his plea. It

contained a conclusory assertion regarding coercion—an assertion contradicted by

the district court’s thorough inquiry. In other words, the letter indicates Ross

sought to relitigate an earlier position he had taken in open court. Our precedents

foreclose that tactic. As the former Fifth Circuit explained in United States v.

Dabdoub-Diaz, 599 F.2d 96 (5th Cir. 1979),

Diaz’s conclusory allegation unsupported by specifics does not justify a hearing to relitigate representations made by himself, his lawyer, and the prosecutor in open court. In a situation in which a defendant submits specific factual allegations, not directly contradicted in the record, of circumstances undermining his plea, further fact development would be required. This is not such a case.

Id. at 100 (citations omitted). So too with Ross: his conclusory, unsupported

assertion that he was coerced did not justify an evidentiary hearing.

Ross suggests the district court did not explain why it did not hold a hearing.

We disagree. The district court explained at sentencing that it found Ross had

changed his plea knowingly and voluntarily. The court was clearly referring to the

finding it had made at the change-of-plea hearing. Because we can review what

happened at that hearing, including the detailed inquiry that led to that finding, we

find the district court’s explanation satisfactory to provide for meaningful review.

Ross also contends the first Buckles factor—whether close assistance of

counsel was available—is in question. See Buckles, 843 F.2d at 472. In support,

he points to the October 2016 hearing before the magistrate judge on Ross’s 10 Case: 17-11306 Date Filed: 06/06/2019 Page: 11 of 11

counsel’s motion to withdraw. That hearing reveals only that Ross had asked his

attorney to file documents the attorney deemed would be frivolous. That

disagreement is not enough to demonstrate a wedge between Ross and his counsel.

Moreover, after that hearing, in both the written plea agreement and at the change-

of-plea hearing, Ross affirmed he was satisfied with his counsel’s performance.

Based on the foregoing, and given the fact that the district court is best

positioned to evaluate the good faith and credibility of the defendant in this

situation, see id., we conclude the district court did not abuse its discretion in

refusing to hold Ross’s requested evidentiary hearing.

AFFIRMED.