USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1372
UNITED STATES,
Appellee,
v.
TODD P. ISOM,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Paul J. Klehm, by Appointment of the Court, for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Sheldon Whitehouse, United States Attorney, and Lawrence D.
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Gaynor, Assistant United States Attorney, were on brief for
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appellee.
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June 7, 1996
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TORRUELLA, Chief Judge. Defendant-Appellant Todd Isom
TORRUELLA, Chief Judge.
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("Isom") appeals the district court's denial of his request to
withdraw his plea of guilty. For the reasons stated herein, we
affirm.
BACKGROUND
BACKGROUND
In November 1992, Isom, along with co-defendant Anthony
McKinney ("McKinney"), was indicted on two counts. Count I
charged the two men with conspiracy to distribute and to possess
with intent to distribute five grams or more of cocaine base.
See 21 U.S.C. 846. Count II charged them with possession with
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intent to distribute five grams or more of cocaine base. See 18
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U.S.C. 2; 21 U.S.C. 841(a)(1), 841(b)(1)(B). The testimony
at the probable cause and change of plea hearings indicates that
the circumstances of arrest were as follows. On October 26,
1993, a confidential informant, accompanied by several Drug
Enforcement Administration Task Force Agents, taped two telephone
conversations with McKinney. McKinney agreed to meet the
informant in Providence and sell him two ounces of crack cocaine.
The rendezvous took place as planned. McKinney joined the
informant and an agent in an undercover vehicle. When the agent
asked to see the drugs before allowing McKinney to count the
money, McKinney said that "his guy" was coming with the "stuff"
and directed the agent to a nearby parking lot. McKinney then
got out of the car and flagged Isom, who took a clear plastic bag
out of his pants and gave it to McKinney. After McKinney showed
the agent some of the contents of the bag, the agent gave the
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arrest signal. Both co-defendants fled, and were subsequently
apprehended. After receiving their Miranda warnings, both
defendants made statements admitting possession of the crack
cocaine.
At his arraignment, Isom pled not guilty. On January
14, 1994, at his change of plea hearing, the district court
accepted Isom's1 change of plea to guilty on both counts,
pursuant to a plea agreement, which provided, inter alia, that
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Isom would plea guilty and the government would recommend a
sentence at the low end of the sentencing guideline range or of
five years, whichever was greater. At the March 18, 1994,
sentencing hearing, however, defense counsel indicated to the
court that Isom had informed him that he did not understand the
change of plea, the attendant colloquy, or even the plea
agreement. Isom then addressed the court and made a pro se
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motion to withdraw his plea. Isom began his motion by stating
that he did not want to withdraw his plea:
MR. ISOM: Good morning. I just want
to start off, your Honor, by saying I'm
not trying to change the plea that I
entered the day that I said that I was
guilty of taking a bag from my co-
defendant. Also I want to make a
statement clearly that I also received it
from my co-defendant to bring it down
there, okay.
Immediately following these statements, however, Isom presented
his reasons to withdraw his plea: his lack of understanding of
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1 McKinney had already pled guilty to the two counts of the
indictment.
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the plea agreement and ineffective assistance of counsel.
I feel like this, I came in here to this
courtroom January 14th to plead under
that, but I did not understand the plea
agreement, and did not see the plea
agreement until that day, until that
morning, five minutes before I entered
the courtroom. My lawyer states that he
went over it with me. I don't have
copies of nothing, your Honor, anything,
not even discovery package, nothing. I
don't have nothing. He claims he came,
he discussed this. He claims why I
didn't want copies of them. I don't
understand that, your Honor. I feel like
this, if he was -- if I was supposed to
have copies of them, I should have had
copies of them. I just feel -- I put in
a motion to withdraw the plea.
Isom concluded by pleading his innocence.
I just taking -- taking into
consideration and ask you, to beg you, to
beg the Court, that you take into
consideration and look at the motion, and
I'll go with your decision, whatever you
decide to grant, whatever you decide your
go under, but I really feel as I should
have a chance to prove my innocence in
this case here. I'm freely pleading out
to something I didn't even have nothing
to do with. Just because I brung the bag
down to him, with the knowledge of not
knowing what was in it, doesn't say that
I was involved with a drug deal. I'm not
a drug dealer, and I feel I just go from
my heart that I should just let you look
over the motion. Thank you.
(Sentencing Hearing, at 3-4). The court refused Isom's motion:
THE COURT: Well, it comes too late,
to begin with. I took your plea here in
open court, and I asked you all the
questions, and you made all the right
answers --
MR. ISOM: Yup.
THE COURT: (Continued) -- to plead in
this matter.
MR. ISOM: Yes.
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THE COURT: And you told me you
understood the plea agreement.
MR. ISOM: Uh-hum.
THE COURT: And what the Government's
recommendation was going to be. So I'm
not going to allow you to pull out at
this point.
MR. ISOM: Okay. No problem.
(Sentencing Hearing, at 4-5). Isom was sentenced to sixty months
in prison, to be followed by four years of supervised release,
and a $100 assessment.
Ten days following the sentencing hearing, a written
motion to withdraw plea was filed. Isom's signature on the
motion, which was apparently prepared by a paralegal clerk at a
detention center, was notarized on March 15, prior to the
sentencing hearing. The written motion stated, inter alia, that
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the plea should be withdrawn as it was entered without the proper
advice of counsel, and that Isom did not understand the nature of
the charge, the consequences of the plea, or his rights in
connection with the plea. In support of these contentions, the
motion maintained that Isom was a functional illiterate, that he
was innocent, and that the government would suffer no prejudice
from withdrawal of Isom's guilty plea. The reason presented for
withdrawal was ineffective assistance of counsel. The court
denied the motion, on the grounds that it was untimely and lacked
substance. This appeal ensued.
DISCUSSION
DISCUSSION
The sole issue before us is whether the district court
erred in denying Isom's oral and written motions to withdraw his
plea of guilty without an evidentiary hearing. After
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establishing our standard of review, we set out the legal
framework and weigh the merits of Isom's appeal. For the reasons
discussed below, we affirm the district court.
A. Standard of Review
A. Standard of Review
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The timing of a motion determines our standard of
review: we apply an abuse of discretion standard to pre-
sentencing motions, see United States v. Gray, 63 F.3d 57, 60
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(1st Cir. 1995), and a miscarriage of justice standard to post-
sentencing motions, see United States v. Ruiz-del Valle, 8 F.3d
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98, 103 (1st Cir. 1993). Isom made two motions, the pre-
sentencing oral motion and the post-sentencing written motion.
However, as the written motion was notarized before sentencing
occurred, and Isom referred to it during his oral motion before
the sentencing court, the Government does not contend that the
more rigorous miscarriage of justice standard should apply to the
written motion. We here apply the abuse of discretion standard
to both motions without further comment, in part because we find
that even under the more lenient pre-sentencing standard, Isom's
appeal must fail. See generally United States v. Parrilla-
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Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (noting that abuse of
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discretion standard is applied out of deference to the trial
judge's special insight into the dynamics of a case).
B. The Legal Framework
B. The Legal Framework
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It is by now well established that a defendant does not
have an absolute right to withdraw a guilty plea. See Gray, 63
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F.3d at 59; United States v. Austin, 948 F.2d 783, 786 (1st Cir.
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1991); see also United States v. Kobrosky, 711 F.2d 449, 454 (1st
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Cir. 1983) (setting out logic behind premise). Rather, the plea
may be withdrawn "only upon a showing of 'fair and just reason'
for the request." United States v. Cotal-Crespo, 47 F.3d 1, 3
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(1st Cir.), cert. denied, __ U.S. __, 116 S. Ct. 94 (1995); see
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Fed. R. Crim. P. 32(e); Austin, 948 F.2d at 786. The defendant
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carries the burden of persuading the court that he has shown such
a fair and just reason. Parrilla-Tirado, 22 F.3d at 371. A
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court must consider several factors in weighing whether a
defendant meets this burden,
the most significant of which is whether
the plea was knowing, voluntary and
intelligent within the meaning of
[Federal Rule of Criminal Procedure] 11.
The other factors include: 1) the force
and plausibility of the proffered reason;
2) the timing of the request; 3) whether
the defendant has asserted his legal
innocence; and 4) whether the parties had
reached a plea agreement.
Cotal-Crespo, 47 F.3d at 3-4 (citation omitted); see also Gray,
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63 F.3d at 60; Parrilla-Tirado, 22 F.3d at 371 (omitting fourth
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factor). There is "a final barrier that must be surmounted:
even if a defendant appears at first blush to meet the strictures
of this four-part test, the nisi prius court still must evaluate
the proposed plea withdrawal in relation to any demonstrable
prejudice that will accrue to the government if the defendant is
permitted to alter his stance." Id.; see Kobrosky, 711 F.2d at
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455.
C. Analysis
C. Analysis
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In essence, Isom claims that his assertions of
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ineffective assistance of counsel, a lack of understanding of the
plea agreement, and his professed innocence constitute a fair and
just reason sufficient that the district court erred in denying
his motion to withdraw his change of plea. Having established
our basic legal framework, we address each of the factors in
detail.
1. The Rule 11 Colloquy
1. The Rule 11 Colloquy
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As noted above, our first consideration is whether the
plea was knowing, voluntary and intelligent as understood in
terms of Rule 11. "We have identified three 'core concerns' of
Rule 11: 1) absence of coercion; 2) the defendant's
understanding of the charges; and 3) the defendant's knowledge of
the consequences of the guilty plea." Gray, 63 F.3d at 60; see
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Cotal-Crespo, 47 F.3d at 4. Failure to address one of these
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concerns requires that the guilty plea be set aside. Gray, 63
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F.3d at 60.
In determining whether there has been a
core violation, we review the totality of
the circumstances surrounding the Rule 11
hearing, rather than apply a "talismanic
test." What is critical is the substance
of what was communicated by the trial
court, and what should reasonably have
been understood by the defendant, rather
than the form of the communication.
Cotal-Crespo, 47 F.3d at 4-5 (citation omitted); see United
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States v. Ribas-Dominicci, 50 F.3d 76, 78 (1st Cir. 1995). In
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the absence of failure to address a core concern, "the question
to be determined is whether deficiencies in the Rule 11 hearing
affected the defendant's 'substantial rights.'" Gray, 63 F.3d at
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60. We "review the record, including the change-of-plea and
sentencing transcripts, with a view to whether the omission was
harmless." United States v. L pez-Pineda, 55 F.3d 693, 696 (1st
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Cir.), cert. denied, __ U.S.__, 116 S. Ct. 259 (1995); see Fed.
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R. Crim. P. 11(h) ("Any variance from the procedures required by
this rule which does not affect substantial rights shall be
disregarded."). "It is axiomatic that the procedures followed by
the district court in accepting a plea are crucial in later
determining whether the plea was truly understanding and
voluntary." Ruiz-del Valle, 8 F.3d at 102. In the present case,
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the court conducted a comprehensive inquiry under Fed. R. Crim.
P. 11. In response to the court's questioning, Isom confirmed
that he had a ninth-grade education and was not under the
influence of any drug, medication, or alcoholic beverage. He
agreed that he had received a copy of the indictment, had
discussed it fully with his counsel, and that he was satisfied by
his counsel's representation and advice. The court instructed
Isom to listen carefully as the Government set forth the
essentials of the plea agreement; Isom agreed that the account
corresponded to his understanding of the plea agreement, that he
had signed it after a full discussion of it with his attorney,
and that he had read it prior to signing it. He attested that
there had been no other promises or assurances made him to induce
him to plead guilty, and that there were no attempts to force him
or coerce him into doing so. Isom further confirmed that he
understood that he was charged with felony offenses, due to which
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he may be deprived of certain civil rights; that he understood
the maximum penalties applicable and that the guidelines may not
establish the same penalty; that he had discussed the guidelines
with his attorney; and that he knew the judge would determine the
applicable sentence after a presentence report. At the court's
questioning, Isom also agreed that he knew he had the right to a
trial with or without a jury, as well as the rights incidental to
a trial, such as the right to counsel. When the circumstances of
his arrest, as described above, were recounted, the following
colloquy ensued between the court and Isom:
Q Did you hear all that, Mr. Isom?
A Yes, I did.
Q And are those the facts in your case?
A Somewhat. I did not pull anything
from out of my pants, and I did not -- it
was in a plastic bag, in a napkin, and
they did not flee the area, either.
Q I'm sorry, they did not what?
A I did not flee the area like they
said, they chased me. I did not run
nowhere.
Q But you delivered some crack cocaine?
A Yes, I did. Yes.
Q You admit to that?
A Yes, I do.
Q Is there anything else you want to add
or subtract from what the prosecutor
said?
A No. That's all.
(Change of Plea Hearing, at 12). The court reiterated the
charges against Isom, seeking his confirmation that he understood
them and that he was prepared to plead guilty to them. Finally,
finding that Isom's plea of guilty was knowing and voluntary as
well as supported by an independent basis in fact, the court
accepted Isom's change of plea.
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In his motions and on appeal, Isom maintains that he
did not understand either the plea agreement or the Rule 11
colloquy. However, he fails to point to any specific error or
point of confusion. Our own examination of the record reveals no
error. See Ruiz-del Valle, 8 F.3d at 102 (examining sua sponte
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compliance with Rule 11). The court directly addressed the three
crucial aspects of the colloquy -- whether Isom had been coerced,
whether he understood the charges, and whether he understood the
consequences of his plea. Nothing in the record indicates that
he was coerced or did not understand the agreement or the
colloquy. Rather, Isom's statements are indicative of his
understanding: he corrected the detailed account of the
circumstances surrounding his arrest on three particular points,
ultimately agreeing that he had in fact delivered crack.
Further, when the court asked him whether he and his counsel had
come to a ballpark figure of what the applicable sentencing
guidelines would be, he stated:
A No I haven't. Have I come to any
agreement?
[DEFENSE COUNSEL]: No. Do you have a
ballpark figure as to --
THE WITNESS: Five to forty.
Q You think you're probably going to do
five years in this case, Mr. Isom?
A No. It was five to forty, that's all
I understood what it was.
(Change of Plea Hearing, at 8). This colloquy indicates that
Isom clearly understood the possible implications of his guilty
plea. Indeed, defense counsel testified at the sentencing
hearing that he had spent an hour and a half going over the plea
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agreement with Isom, and that Isom had refused to take any copies
of the agreement or the pre-sentence report.
At oral argument, appellant's counsel argued that the
fact that the colloquy consisted of leading questions, to which
defendant merely had to answer "yes," indicates somehow that it
was insufficient: the court knew Isom's reading skills were
minimal,2 and so it should have had Isom describe the agreement
in his own words. Cf. Cotal-Crespo, 47 F.3d at 6 ("The manner
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in which the charge is explained and the method for determining
the defendant's understanding of the charge will vary from case
to case depending upon the complexity of the charges, the
capacity of the defendant, and the attendant circumstances.").
We find no merit in this position. The charges here are fairly
simple, and, as appellant's counsel admitted at oral argument,
there is no evidence that Isom's capacity is diminished. The
fact that Isom has had little formal education does not imply he
is not intelligent enough to understand a Rule 11 colloquy.
Indeed, his responses to the court addressed detailed points of
the testimony, suggesting he was following the discussion in the
courtroom. In fact, Isom did not simply agree to everything the
court asked him, as he now contends his attorney told him to do:
in the colloquy quoted above, he denied that he had come to a
ballpark figure of what the sentencing guidelines would require,
confirming that with his counsel. Quite simply, Isom has failed
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2 Defendant testified at the change of plea hearing that he had
a ninth-grade education. At the sentencing hearing, however, the
court stated that Isom had a second-grade reading level.
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to meet his burden of demonstrating that the plea was not
knowing, voluntary, and intelligent.
2. Force and Plausibility of Proffered Reason
2. Force and Plausibility of Proffered Reason
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Isom must demonstrate a plausible reason for the
withdrawal of his guilty plea. "In this context, plausibility
must rest on more than the defendant's second thoughts about some
fact or point of law, or about the wisdom of his earlier
decision." Parrilla-Tirado, 22 F.3d at 371 (citations omitted).
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The reasons Isom offers here are innocence, ineffective
assistance of counsel, and failure to make a voluntary plea. As
the last reason has already been discussed and dismissed above,
we address only the first two here.
First, Isom claims his innocence. In his written
motion, he alleges that he could produce wholly exculpatory
evidence at trial, but does not specify its nature. Examining
the record, we find that Isom's eleventh-hour profession of
innocence lacks merit, and thus does not rise to the level of a
"fair and just reason" for withdrawal of his claim. In United
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States v. Ramos, 810 F.2d 308 (1st Cir. 1987), we found that the
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defendant's claim of innocence lacked merit where, as here, he
did not assert innocence at the change of plea hearing, but only
at the sentencing hearing, when he had already been convicted for
a similar crime. Id. at 313. Ramos, like Isom, claimed to
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possess exculpatory information sustaining his innocence, but
provided no insight into its substance. In these circumstances,
the court in Ramos held that "the trial court did not abuse its
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discretion in refusing to give weight to a self-serving,
unsupported claim of innocence raised judicially for the first
time after the Rule 11 hearing." Id.
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That finding is equally true here. Indeed, Isom not
only failed to maintain his innocence at the Rule 11 hearing, he
clarified specific points regarding the events, agreeing
immediately afterwards that he delivered crack cocaine. His
claim of innocence in his oral motion followed his opening
statement that he "received [a bag] from my co-defendant to bring
it down there, okay." (Sentencing Hearing, at 3). Appellant
urges us to read this "obvious confusion" as highlighting his
need to withdraw his plea so that he may gain a better
understanding of the legal issues involved in his case. We
decline the invitation, however, for we interpret Isom's
contradictory statements as the Ramos court did that defendant's
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inconsistent claims of innocence, and find Isom's assertion of
innocence lacks merit. Cf. Parrilla-Tirado, 22 F.3d at 373
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("Courts need not accept a defendant's explanations
uncritically.").
Isom asserts a second "fair and just" reason:
ineffective assistance of counsel. This court applies the
Strickland v. Washington, 466 U.S. 668 (1984), standard for
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evaluating an ineffective assistance of counsel claim. See,
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e.g., Ramos, 810 F.2d at 314. Thus, to successfully challenge a
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guilty plea, a defendant must show that, first, "counsel's
performance in advising guilty pleas fell below the standard of
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performance of reasonable proficient counsel," and second, that
"by such inadequate performance, Appellant was induced to enter
guilty pleas which he otherwise would not have entered." Austin,
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948 F.2d at 786; see Ramos, 810 F.2d at 314.
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Isom contends that the district court erred in not
holding an evidentiary hearing on his ineffective assistance
claim. As he points out, this court has refused to hear
ineffective assistance claims for the first time on appeal where
there is no record on which to rely. In such cases, we have held
that such claims should be brought in collateral proceedings
pursuant to 28 U.S.C. 2255, where a record may be developed.
See, e.g., United States v. Carter, 815 F.2d 827, 829 (1st Cir.
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1987) (noting that ineffective assistance charges "depend on
evidentiary matters that are best considered by the district
court in the first instance."); Kobrosky, 711 F.2d at 457.
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Fairness to the parties and judicial
economy both warrant that, absent
extraordinary circumstances, an appellate
court will not consider an ineffective
assistance claim where no endeavor was
first made to determine the claim at the
district level.
Austin, 948 F.2d at 785 (finding that the appellate court had
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jurisdiction to hear the claim where it was confined to matters
in the record).
Rather than conclude that a collateral proceeding is
appropriate in the present case, however, Isom argues that we
should remand for a full evidentiary hearing on his claim. We
remind him that evidentiary hearings are not an entitlement:
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[E]videntiary hearings on motions are the
exception, not the rule. We have
repeatedly stated that, even in the
criminal context, a defendant is not
entitled as of right to an evidentiary
hearing on a pretrial or posttrial
motion. Thus, a party seeking an
evidentiary hearing must carry a fairly
heavy burden of demonstrating a need for
special treatment.
United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)
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(upholding district court refusal to hold evidentiary hearing on
28 U.S.C. 2255 motion) (citations omitted); see United States
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v. Garc a, 954 F.2d 12 (1st Cir. 1992) (upholding district court
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refusal to hold evidentiary hearing on sentencing guideline
issue); United States v. Thompson, 906 F.2d 1292, 1298-99 (8th
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Cir. 1990) (finding that district court did not abuse its
discretion in denying motion to withdraw a plea based on
ineffective assistance without holding evidentiary hearing). We
also note that in neither his oral nor his written motion did
Isom request an evidentiary hearing. See United States v.
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Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992) (noting that "the
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failure to ask the district court to convene an evidentiary
hearing ordinarily spells defeat for a contention that one should
have been held" on sentencing guidelines issues).
Isom's request that we remand for an evidentiary
hearing fails. Simply put, having considered the record of the
hearings as well as the written motion, we find that the district
court's decision not to hold an evidentiary hearing does not
constitute an abuse of its discretion. See Ramos, 810 F.2d at
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314 (noting that current counsel's "conclusory, factually
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unsupported assertion that [previous] counsel were negligent . .
. . [was] insufficient for us to require an evidentiary
hearing."); Kobrosky, 711 F.2d at 457 (dismissing charge where no
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extrinsic evidence was offered to buttress the allegations of
ineffective assistance or to counter the government's protest
that it would be prejudiced). Isom may, of course, bring his
ineffective assistance of counsel claim in a collateral
proceeding under 28 U.S.C. 2255, where a record may be
developed.
Isom makes the alternative argument that he presented
enough information during his oral plea for us to be able to
determine that he should be able to withdraw his plea as a result
of ineffective assistance of counsel. This argument also fails.
First, the ineffective assistance claim was made sketchily at
best: Isom claimed he did not see the plea agreement until the
morning, and that he did not have copies of any documents. His
counsel, in turn, stated to the court that he had spent one and a
half hours going over the three-page plea agreement, and that
Isom had never asked for copies of anything, but had in fact
refused copies. Isom does not contest these representations. We
cannot say that the district court abused its discretion in
denying the oral motion when Isom's ineffective assistance claim
was only briefly made, where there was testimony contradicting
his assertions, where he had stated in his Rule 11 colloquy that
he signed the agreement after a full discussion of it with his
attorney, and where there was no evidence that Isom had not, in
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fact, understood the Rule 11 colloquy. Indeed, the district
court specifically commended counsel for doing "an excellent job"
for Isom, winning him the maximum guideline benefits in
sentencing.
3. Timing of the Request
3. Timing of the Request
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We have repeatedly noted that the more a request is
delayed -- even if made before sentence is imposed -- the more we
will regard it with disfavor. See, e.g., United States v.
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Gonz lez-V zquez, 34 F.3d 19, 23 (1st Cir. 1994); Parrilla-
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Tirado, 22 F.3d at 373. "The rule of thumb is that the longer a
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defendant waits before moving to withdraw his plea, the more
potency his motion must have in order to gain favorable
consideration." Id. Thus, we have viewed unfavorably motions
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to withdraw a plea made six months following the guilty plea,
id., seven months later, United States v. Doyle, 981 F.2d 591,
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595 (1st Cir. 1992), three weeks later, United States v. Keefe,
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621 F.2d 17, 18 (1st Cir. 1980), or thirteen days later, Ramos,
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810 F.2d at 313. Clearly, Isom's two-month delay in making his
request falls well within this range. See United States v.
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Crosby, 714 F.2d 185, 192 (1st Cir. 1983) (upholding district
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court's refusal to grant motion to withdraw where, inter alia,
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motion was made eight weeks following sentencing). "Given the
totality of the circumstances that pertain here, [A]ppellant's
lassitude serves to cast considerable doubt upon the legitimacy
of his professed reason for seeking to change course." Gonz lez-
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V zquez, 34 F.3d at 23.
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Isom argues on appeal that the district court erred in
stating that the oral motion was not timely. Indeed, as he
points out, Fed. R. Crim. P. 32(e) allows a plea to be withdrawn
any time prior to sentencing if defendant shows a fair and just
reason. However, making a motion to withdraw a plea two months
following a Rule 11 hearing "complies with the letter, but
certainly not the spirit" of Rule 32(e). Crosby, 714 F.2d at
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192. Isom also emphasizes that he made both motions prior to
sentencing. This, however, is not a factor courts assessing the
timing of a change of motion plea have given great weight: more
significant has been the fact that a withdrawal of plea motion
comes after a presentence report sets out the possible sentence.
See, e.g., Parrilla-Tirado, 22 F.3d at 373 (noting that
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defendant's "belated change of heart followed not long after the
PSI Report"); Doyle, 981 F.2d at 595 (commenting that motion came
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shortly after discovery that court was contemplating long prison
sentence).
Appellant's next argument, namely, that given Isom's
difficulties with the written word, it was logical that he first
raised his motion to withdraw orally at his first court
appearance following the change of plea hearing, is inconsistent
with his position that the written motion was actually made prior
to sentencing. Indeed, Isom referred to the written motion in
his oral motion.
4. Assertion of Innocence
4. Assertion of Innocence
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An assertion of innocence weighs the balance in favor
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of withdrawal; the failure to do so does the opposite. See
___
Parrilla-Tirado, 22 F.3d at 373. Nonetheless, "the mere
_______________
protestation of legal innocence cannot in and of itself be issue-
determinative, for '[t]here are few if any criminal cases where
the defendant cannot devise some theory or story which, if
believed by a jury, would result in his acquittal.'" Kobrosky,
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711 F.2d at 455 (quoting N ez-Cordero v. United States, 533 F.2d
_____________ _____________
723, 726 (1st Cir. 1976)). Thus, "if defendant's factual
contentions create no 'legally cognizable defense' to the
charges, 'he has not effectively denied his culpability,' and the
motion can be denied." Ramos, 810 F.2d at 312 (quoting United
_____ ______
States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) (en banc), cert.
______ ______ _______ _____
denied, 421 U.S. 1013 (1975)). Isom's assertion of innocence is
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addressed above.
5. Other Factors
5. Other Factors
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Finally, we note that Isom did, indeed, have a plea
agreement with the government, which was not breached.
"Since all the critical integers in the decisional
calculus counsel affirmance, we need not embark upon an analysis
of possible prejudice to the government." Doyle, 981 F.2d at 596
_____
n.6.
CONCLUSION
CONCLUSION
For the reasons discussed above, the district court's
refusal to grant Isom's motion to withdraw his plea is affirmed.
affirmed.
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