United States v. Harrison

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20257

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE HENRY HARRISON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-98-CR-179-1) -------------------- June 29, 2000

Before WIENER and STEWART, Circuit Judges, and ROSENTHAL*, District Judge.

PER CURIAM:**

In this direct criminal appeal, Defendant-Appellant Willie

Henry Harrison complains that his plea of guilty pursuant to a

written plea agreement was not knowingly and voluntarily given

because of alleged deficiencies in his Fed. R. Crim. P. 11 colloquy

with the court; and further complains that the district judge erred

reversibly in denying his motion to withdraw his guilty plea for

the same reason plus his asserted failure to understand that he was

* District Judge for the Southern District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. pleading guilty to a conspiracy to possess a controlled substance

rather than possession itself. Finding no reversible error, we

affirm the district court’s denial of Harrison’s motion to withdraw

his plea and also affirm Harrison’s conviction and sentence.

I.

FACTS, PROCEEDINGS, AND ANALYSIS

Harrison and his wife, Alice, were charged in a 6-count

indictment for various narcotic offenses. He entered into a

written plea agreement to plead guilty to conspiracy to possess 50

grams or more of crack cocaine (Count 1), to waive his right to

appeal, and to cooperate fully with the government. In return, the

government agreed to dismiss the remaining counts of the indictment

and, if it determined that Harrison had provided substantial

assistance, to move for a downward departure. Several months

later, the government filed an “Information of Prior Convictions”

for purposes of sentence enhancement, alleging that Harrison had

three prior felony convictions for possession of marijuana. On the

same day as that filing, Harrison appeared for re-arraignment at

which he pleaded guilty to the one conspiracy count. Present

during the Rule 11 colloquy with the district court were Harrison,

his compensated counsel, and the Assistant United States Attorney.

At that time, of course, there had been no presentence

investigation conducted by the Probation Department so, among other

unknowns, the validity of the government’s allegations of prior

convictions remained to be determined.

2 Although the advice given by the district court during the

plea colloquy was less than perfect, perfection is not required;

and we find the advice adequate on the question of mandatory

minimum sentence. Although Harrison complains that he was confused

by the court and did not understand that, if the three prior counts

were proven and the government did not move for a downward

departure below the minimum pursuant to § 5K.1 of the Sentencing

Guidelines, the court would have no choice but to sentence him to

incarceration for life, we remain unconvinced. As noted, Harrison

was accompanied by experienced counsel and he himself is a mature,

experienced, and obviously street-wise drug dealer with

considerable prior exposure to the criminal justice system. These

facts, coupled with the written plea agreement entered into by

Harrison, with advice of counsel, satisfies us that he knew

precisely what he faced and that his plea of guilty was given

knowingly and voluntarily. We have no doubt that Harrison

concluded (correctly) that, in light of the overwhelming evidence

of his guilt, his only possible chance of avoiding life

imprisonment was to plead, cooperate, and hope for a downward

departure. He did that in October, 1998, and not until January,

1999 did he file a letter pro se seeking to withdraw his guilty

plea. By then, of course, he must have ascertained that “Plan A”

was not working, making “Plan B” necessary, i.e., claim a deficient

Rule 11 colloquy and seek to withdraw his guilty plea.

Our careful review of the transcript of the Rule 11 hearing

dispels any doubt about the adequacy of the colloquy regarding

3 mandatory minimums. The court made sufficiently clear that if the

government’s allegations of prior convictions were confirmed, the

mandatory minimum would be life imprisonment. The court stated

that “the punishment in this case can be up to life in prison” and

added that if the government “can’t prove some other conviction,

the basic punishment is 10 years to life,” i.e., there’s 10-year

minimum no matter what but life if the priors are proved. When

viewed in light of the additional clarification by the prosecutor

(“...potentially, a mandatory minimum of life with the

enhancement,”), Harrison had to know the situation, as did his

counsel who —— like Harrison —— indicated his understanding and

agreement and never objected.

Even more lame is Harrison’s assertion that he did not

understand that he was implicating Alice in the conspiracy plea,

insisting that he only intended to plead guilty to his own acts.

Again, Harrison has been a “frequent flier” in the system, was

advised by counsel before entering the plea agreement and at the

Rule 11 hearing, and agreed under oath that he was guilty of the

conspiracy. Moreover, he and Alice —— who, incidentally, pleaded

guilty to the same conspiracy —— were arrested together; drugs and

paraphernalia were discovered in the bedroom of their community

domicile; and the evidence is overwhelming that they jointly

conducted their illicit business from their common residence.

The district court conducted a live hearing on Harrison’s

motion to withdraw his guilty plea in February, 1999, after which

the court denied the motion. Considering the hearing and the

4 evidence, and testing them under the seven factors specified in

United States v. Karr, 740 F.3d 339, 343-44 (5th Cir. 1984), we are

left with no doubt but that the court did not abuse its discretion

in denying Harrison’s motion to withdraw his guilty plea.

II.

CONCLUSION

For the foregoing reasons we conclude that Harrison’s plea of

guilty was knowing and voluntary, and that the district court did

not abuse its discretion or otherwise commit reversible error in

denying Harrison’s motion to withdraw his plea of guilty. His

conviction and sentence are, therefore,

AFFIRMED.