United States v. Marshall
Procedural entryThis page is a short order in United States v. Marshall. Read the opinion of the Court — 109 F.3d 94 →
Opinion
USCA1 Opinion
January 5, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1724
UNITED STATES,
Appellee,
v.
JAMES T. MARSHALL,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Bownes, Senior Circuit Judge, and ____________________
Stahl, Circuit Judge. _____________
____________________
James T. Marshall on brief pro se. _________________
Donald K. Stern, United States Attorney, and Mark W. Pearlstein, ________________ __________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Defendant James Marshall appeals from __________
a district court order denying his motion under Fed. R. Crim.
P. 32(d) to withdraw his guilty plea. For the reasons that
follow, we affirm.
I.
Defendant was indicted on a single count of being a
felon in possession of a firearm--a charge that, due to his
lengthy criminal history, subjected him upon conviction to a
15-year mandatory minimum term of imprisonment. See 18 ___
U.S.C. 922(g), 924(e). Defendant was ordered detained
pending trial. Nine months later (following the discovery
that defendant was afflicted with the HIV virus), the
government and defendant reached a plea agreement providing
in part as follows: (1) defendant would plead guilty and
would assist the government in related criminal
investigations; (2) the government would recommend that he be
released pending sentencing; and (3) in the event that
defendant's cooperation (in the government's judgment)
constituted substantial assistance, the government would file
a motion under U.S.S.G. 5K1.1 for downward departure and
would recommend no further imprisonment. On June 24, 1993,
following a careful Rule 11 colloquy, the district court
accepted defendant's guilty plea and adopted the plea
agreement. Defendant was released on bail six days later.
-2-
Defendant failed to assist the government as promised--
despite being afforded numerous opportunities to do so, and
despite being specifically warned on several occasions that
he would lose the benefits of a 5K1.1 motion if his lack of
cooperation persisted. Accordingly, on March 28, 1994, three
days before sentencing was to occur, the government announced
that it would decline to move for a downward departure. The
court ended up postponing sentencing for several weeks to
enable defendant to review the presentence report, but it did
revoke bail on March 31 because of the mandatory sentence he
was then facing.
Six days later, defendant filed a pro se motion to
withdraw his plea, arguing that his counsel had provided
ineffective assistance in advising him to plead guilty. His
sole contention in this regard was that counsel, by failing
to review his file, had overlooked and otherwise failed to
pursue a viable justification defense. The court addressed
this motion on April 21 at the outset of the sentencing
hearing. In response to inquiries from the court, defendant
acknowledged that he and counsel had discussed a possible
justification defense prior to the change of plea, with the
latter advising him that it was unlikely to succeed. Counsel
confirmed this version of events, telling the court that a
justification defense had struck him as "thin" based on "the
documents provided"; he added, however, that the final choice
-3-
to plead guilty had been made by his client. The court found
that defendant had adduced no "fair and just reason" to
withdraw his plea, as required by Rule 32(d). It noted that,
far from having been ineffective, counsel had acted
responsibly by abandoning the "challenging" justification
defense and negotiating a "highly favorable" plea agreement.
The court denied the motion to withdraw and thereafter
imposed the 15-year mandatory sentence. Defendant now
appeals on a pro se basis.
II.
Defendant's challenge to the court's Rule 32(d) decision
requires little comment. We review such a ruling for abuse
of discretion. See, e.g., United States v. Gonzalez-Vazquez, ___ ____ _____________ ________________
34 F.3d 19, 22 (1st Cir. 1994). As explained in United ______
States v. Parrilla-Tirado, 22 F.3d 368 (1st Cir. 1994), the ______ _______________
exercise of discretion in this context depends on the
"overall situation" and rests "most prominently" on four
factors: (1) the plausibility of the reasons prompting the
requested change of plea; (2) the timing of the motion; (3)
the existence or nonexistence of an assertion of innocence;
and (4) whether the plea may appropriately be regarded as
involuntary, in derogation of the requirements of Rule 11, or
otherwise legally suspect.1 Id. at 371; accord, e.g., ___ ______ ____
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