United States v. Dunfee , 821 F.3d 120 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1031
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA DUNFEE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Paul J. Garrity for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
May 2, 2016
PER CURIAM. Joshua Dunfee confessed not once, but twice,
to allegations that he engaged in conduct sufficient to support
convictions for the coercion and enticement of a minor, and the
sexual exploitation of a child. The first of these confessions
came at the time of Dunfee's arrest, and the second came during a
change-of-plea hearing before the district court, at which Dunfee
pled guilty to the charges against him. Later, Dunfee filed two
motions seeking to withdraw his guilty plea. The district court
denied these motions and sentenced Dunfee to a twenty-year term of
imprisonment. Dunfee now appeals from the denial of his motions
to withdraw his plea, as well as from his sentence, which he
challenges as procedurally and substantively unreasonable. We
AFFIRM.
I. Facts and Background
A. The Offense Conduct
In 2010, Dunfee created a fictitious Facebook page for
a photography studio by the name of Hunt Photography. Using the
equally fictitious pseudonym, "John," Dunfee held himself out as
a Hunt employee and, in September 2011, began communicating online
with an adult female, A.L., a resident of Massachusetts. A.L. was
interested in working as a model. Believing that Hunt Photography
was a legitimate enterprise and that John was its legitimate
employee, A.L. agreed to take part in an "audition" with John via
a webcam, during which she exposed intimate parts of her body.
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A.L. had a ten-year-old daughter, R.L. On October 4,
2011, Dunfee again contacted A.L. This time, again acting as John,
Dunfee offered A.L. $20,000 for a "mother-daughter bikini modeling
contract." To secure the contract, Dunfee explained, A.L. and
R.L. would need to audition.
During the course of a Skype call that afternoon, at
Dunfee's direction, A.L. posed R.L. in front of the webcam wearing
a bra and panties. Again at Dunfee's direction, A.L. manipulated
R.L.'s underwear, then agreed to shave R.L.'s pubic area. A.L.
then returned R.L. to the webcam fully nude and, following Dunfee's
instructions, displayed R.L.'s genitalia, ostensibly so that
Dunfee could determine if R.L. was a suitable "model." R.L. became
so upset that she refused to continue and A.L. terminated the Skype
call. A.L. then discussed the incident with her sister, who
promptly reported it to police.
Using his IP address, law enforcement officers tracked
Dunfee's communications to his residence, located in Oxford
Junction, Iowa. On November 3, 2011, officers with the United
States Postal Inspection Service ("USPIS") executed a search
warrant at the premises. After waiving his Miranda rights, Dunfee
gave a full confession to USPIS Inspector Scott Kelley, describing
in detail his creation of the Hunt Photography Facebook page and
his role posing as John, and confirming that he had directed A.L.
to shave and display R.L.'s genitalia. Dunfee admitted to
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Inspector Kelley that although he was unsure of R.L.'s exact age,
he "guessed she was around 15." Dunfee was placed under arrest
and was transferred to the District of Massachusetts.
As part of their search of Dunfee's residence, officers
seized a number of computers, later examination of which revealed
a wealth of incriminating evidence. For example, officers
discovered records of the communications between Dunfee and A.L.,
as well as hundreds of sexually provocative pictures and videos of
young girls.1
B. Pretrial Proceedings and Dunfee's Guilty Plea
On November 29, 2011, Dunfee appeared for a hearing
before a magistrate judge. Concluding that he posed a danger if
released, the magistrate ordered Dunfee detained prior to trial.
Dunfee was subsequently indicted on charges of sexually exploiting
a child, in violation of 18 U.S.C. § 2251(a) and (e), and coercing
and enticing a minor, in violation of 18 U.S.C. § 2422(b).
In March 2012, at Dunfee's request, the magistrate judge
dismissed Dunfee's appointed federal defender, and appointed
Attorney John Salsberg, an experienced member of the criminal
1Investigators also uncovered evidence that Dunfee had
perpetrated a similar scheme by convincing a California teenager,
whom Dunfee knew to be sixteen years old, to send him semi-nude
photographs with the promise of a modeling contract.
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defense bar, to represent him.2 Later, following the district
court's approval of further funds, Attorney Salsberg was joined by
an associate, resulting in Dunfee having two lawyers representing
him for a significant portion of the pretrial proceedings.
In May 2012, Dunfee moved for reconsideration of the
magistrate judge's pretrial detention order. The magistrate judge
held a two-day hearing, at which Dunfee offered the testimony of
his wife, Barbara Dunfee; his mother-in-law, Terry Sherman; and
his sister-in-law, Ashley Hubbard. Through this testimony, Dunfee
sought to establish an alibi to prove that he was not at home on
October 4, 2011, when he was alleged to have contacted A.L. and
R.L. For example, Barbara and Ashley testified that they were
with Dunfee for portions of the day, and Terry testified that she
recalled seeing Dunfee and Ashley driving together that afternoon.
This alibi defense was subsequently undermined in a
number of key respects. For example, on cross-examination, Ashley
(Dunfee's sister-in-law) admitted that she had previously had a
sexual relationship with Dunfee and that she was aware Dunfee had
used the Hunt Photography Facebook account. During her cross-
examination, Terry (Dunfee's mother-in-law) conceded that she was
unsure whether she had seen Ashley and Dunfee together on
In addition to his several decades of experience, Attorney
2
Salsberg serves as an instructor at Harvard Law School and chairs
the Criminal Justice Act Board in Massachusetts.
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October 4, or some other date. What is more, while Ashley claimed
that she and Dunfee had gone together to two restaurants on
October 4, 2011, credit card records later established that they
had in fact visited those locations on the previous day, October 3.
The magistrate judge expressed his skepticism of the
alibi defense at the hearing, observing that the testimony "simply
doesn't persuade me, period." Later, the magistrate judge issued
a written order denying Dunfee's motion to reconsider, in which he
described the alibi defense as "incredible and unpersuasive."
On September 19, 2013, Dunfee filed a motion to suppress
the confession he had offered to USPIS Inspector Kelley, claiming
that Kelley had misled and coerced him into waiving his Miranda
rights. During a series of ensuing hearings, the district court
heard testimony from Dunfee, Inspector Kelley, and another USPIS
inspector who had witnessed Dunfee's receipt and acknowledgement
of a Miranda waiver. In a written decision, the district court
denied Dunfee's motion to suppress, finding that Inspector Kelley
"did not coerce, intimidate, or otherwise deceive" Dunfee, and
that Dunfee's "credibility was undermined by his clearly false
testimony." United States v. Dunfee, No. 12-CR-10024-PBS, 2013 WL
6488710, at *4 (D. Mass. Dec. 9, 2013).
Pretrial proceedings continued through the end of 2013
and into 2014. The trial was repeatedly delayed as Dunfee hired
a series of forensics experts (with court-approved funds) to assess
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his computer and the records of his online activities. Finally,
a trial date was set for March 31, 2014. On the morning trial was
to begin, however, Dunfee informed the district court that he
intended to plead guilty to both of the charges against him.
During a lengthy colloquy that followed, Dunfee assured the
district court that he was fit to enter a guilty plea, that he had
carefully reviewed the indictment with his attorneys, and that he
was satisfied with the quality of the representation he had
received. The government then offered a summary of the allegations
it would have proven at trial, focusing specifically on Dunfee's
use, on October 4, 2011, of the Hunt Photography Facebook page to
induce A.L. and R.L. This led to the following exchange:
The Court: Do you disagree with [the government's
description of the offense conduct]?
Dunfee: No.
The Court: All right, were you the person who was
pretending to be Hunt Photography and
enticing that girl?
Dunfee: Yes.
The Court: [] Did you know she was underage?
Dunfee: Yes.
After further questioning, during which Dunfee
repeatedly assured the district court that his decision to plead
guilty was undertaken knowingly, freely, and voluntarily, the
district court accepted Dunfee's plea.
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C. Dunfee's Attempts to Withdraw His Plea; Sentencing
Some two months later, in May 2014, the Probation Office
issued a presentence report ("PSR"), which calculated a guideline
recommended sentence of life imprisonment. Soon thereafter,
Dunfee filed a pro se motion seeking to remove his attorney and to
withdraw his guilty plea, which Dunfee stated was the product of
ineffective assistance of counsel. In an accompanying affidavit,
Dunfee professed his innocence and claimed that he was forced to
plead guilty because his attorney had not adequately prepared for
trial and had "obstructed" his defense by, among other perceived
shortcomings, failing to pursue exculpatory evidence, discouraging
defense witnesses from testifying, and telling Dunfee that his
conviction was "guarantee[d]" if the case went to trial.3 Under
separate cover, Dunfee filed a series of exhibits, including
correspondence with his attorney and internet service records,
which Dunfee argued proved he was innocent of the charges. Despite
Dunfee's voluminous filings, he did not request a hearing. On
August 18, 2014, the district court denied Dunfee's motion to
withdraw his plea in a thorough written decision.4
3Although Dunfee was represented by two attorneys, his motion
and affidavit focus only on the actions of Attorney Salsberg.
4 The district court later granted Dunfee's request that
Attorney Salsberg and his associate be dismissed from the case.
The court appointed new counsel to represent Dunfee at sentencing.
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In October 2014, still dissatisfied, Dunfee filed yet
another pro se motion seeking to withdraw his plea. As before,
Dunfee appended a lengthy series of exhibits, which he argued
supported his claim of innocence. Again, he did not expressly
request a hearing. The district court promptly denied this motion.
Although Dunfee's PSR calculated a recommended sentence
of life imprisonment, both Dunfee and the government urged the
district court to impose a below-guideline sentence. The
government requested a sentence of twenty-three years; Dunfee
requested fifteen years. In December 2014, the district court
sentenced Dunfee to a twenty-year prison term.
II. Discussion
Dunfee appeals from the denial of his motions to withdraw
his guilty plea, as well as from his sentence, which he challenges
as procedurally and substantively unreasonable. We consider these
issues in turn.
A. Withdrawal of the Guilty Plea
"A defendant may withdraw a guilty plea before sentence
is imposed if he shows 'a fair and just reason for requesting the
withdrawal.'" United States v. Isom, 580 F.3d 43, 52 (1st Cir.
2009) (quoting Fed. R. Crim. P. 11(d)(2)(B)). We review a district
court's denial of a motion to withdraw for abuse of discretion,
United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006), setting
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aside factual findings only if they are clearly erroneous, United
States v. Santiago Miranda, 654 F.3d 130, 137 (1st Cir. 2011).
A defendant does not have an "unfettered right to retract
a guilty plea" and he bears the burden to establish a fair and
just reason for withdrawal. United States v. Merritt, 755 F.3d 6,
9 (1st Cir. 2014). In considering whether the defendant has
carried this burden, we consider "whether the plea was voluntary,
intelligent, knowing and in compliance with Rule 11; the strength
of the reasons offered in support of the motion [to withdraw];
whether there is a serious claim of actual innocence; the timing
of the motion; and any prejudice to the government if the
withdrawal is allowed." Isom, 580 F.3d at 52.
i. Rule 11: Voluntary, Intelligent, and Knowing
The question of whether the defendant's guilty plea was
entered voluntarily, intelligently, and knowingly is regarded as
the "most significant" of the relevant factors. See United States
v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995). Here, we have
little difficulty concluding that Dunfee's plea passes muster.
Upon being advised of his intention to plead guilty, the district
court placed Dunfee under oath and advised him of his rights to a
jury trial, to be represented by counsel, and to confront the
witnesses against him. See Fed. R. Crim. P. 11(b)(1)(C)-(F). The
district court also reviewed with Dunfee the charges he faced, the
minimum and maximum penalties associated with those charges, the
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applicable sentencing guideline range, and the fact that there was
no plea agreement in place. See id. 11(b)(1)(G)-(N).
What is more, the district court went to great lengths
to ensure that Dunfee was pleading guilty of his own volition, and
that there was a sufficient factual basis for him to do so. See
id. 11(b)(2) and (3). In response to clear and direct questions
posed by the district court, Dunfee confirmed that he had reviewed
the indictment with his attorneys, that he understood its contents,
and that he was satisfied with his legal representation. Then, at
the court's request, the government described the factual
allegations it would have been able to prove at trial. After
hearing these allegations, Dunfee confirmed that they were true
and correct. He also answered "yes" when the district court asked
him whether he had used the Hunt Photography Facebook account to
entice A.L. and R.L., and whether he knew at the time that R.L.
was underage.
In sum, Dunfee affirmatively declared under oath at a
properly conducted Rule 11 hearing that he was guilty of the crimes
with which he was charged. These "declarations in open court carry
a strong presumption of verity," Santiago Miranda, 654 F.3d at 138
(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)), and the
district court was "entitled to give weight to [those declarations]
absent a 'good reason for disregarding them,'" id. (quoting United
States v. Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006)); see
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also United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013)
("A defendant is normally bound by the representations that he
himself makes in open court at the time of his plea.").
Dunfee argues here, as he did before the district court,
that his decision to enter a guilty plea was not made voluntarily;
rather, it was the product of his attorney's ineffective assistance
and coercion. More specifically, Dunfee maintains that because
his attorney failed to adequately prepare for trial, he felt that
he had no choice but to plead guilty. Compounding matters, Dunfee
felt coerced by his attorney, who told him that his conviction was
"guarantee[d]" if the case went to trial.
To parse Dunfee's ineffective assistance claim, we apply
the two-part standard articulated in Strickland v. Washington, 466
U.S. 668 (1984). See United States v. Isom, 85 F.3d 831, 837 (1st
Cir. 1996). In order to prevail, Dunfee must "show that, first,
counsel's performance in advising [his] guilty plea[] fell below
the standard of performance of reasonable proficient counsel, and
second, that by such inadequate performance, [Dunfee] was induced
to enter [a] guilty plea[] which he otherwise would not have
entered." Id. (internal quotation marks omitted). "The Strickland
test imposes 'highly deferential' judicial scrutiny of counsel's
performance and 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.'"
Lopez-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990)
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(quoting Strickland, 466 U.S. at 689). Where, as here, the
defendant was represented by multiple attorneys, an ineffective
assistance challenge is particularly difficult to mount. See id.
at 647.
Dunfee offers several examples of what he characterizes
as Attorney Salsberg's ineffectiveness. He claims that Attorney
Salsberg failed to investigate and uncover exculpatory evidence,
and discouraged certain defense witnesses from testifying. He
also argues that Attorney Salsberg failed to investigate his mental
health as relevant to the defense, and failed to advise the
district court, on the eve of trial, that a continuance was needed
in light of a new prospective witness that Dunfee had identified.
We begin with Dunfee's claim that Attorney Salsberg
failed to pursue exculpatory evidence. Although it is somewhat
unclear, as best we can tell, this claim relates principally to
evidence which falls into one of two broad categories. First,
Dunfee claims that Attorney Salsberg failed to adequately pursue
evidence and witnesses which would have supported his alibi
defense. Second, Dunfee argues that Attorney Salsberg was derelict
in failing to uncover electronic records which he maintains would
have proven that he could not have communicated with A.L. and R.L.
on October 4, 2011.
Dunfee's attorneys aggressively pursued evidence to
support the alibi defense, but the evidence simply did not exist.
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By way of example, while Dunfee sought to offer the testimony of
Terry and Ashley to prove that he was not at home at the time of
the alleged offense, neither witness was apparently in a position
to establish his whereabouts on the day in question. Likewise,
while Dunfee pointed to his time-stamped work records as evidence
that he could not have committed the crime, they in fact showed
that he was not at work during the day on October 4, 2011.
Furthermore, to the extent that Dunfee now claims that
electronic records might have helped his cause had his attorneys
uncovered them, the district court acted well within its discretion
in finding that any such records either did not exist or would not
have been helpful to Dunfee. As we have said, the pretrial
proceedings were repeatedly delayed as Dunfee sought more time
(and court-approved funding) for further forensic review of the
computers seized during the search of his residence. Despite ample
opportunity for the discovery of the electronic records that Dunfee
claims his attorneys should have found, no such evidence was
presented to the district court, nor has it been presented to us
on appeal. See United States v. Pulido, 566 F.3d 52, 59-60 (1st
Cir. 2009) ("[W]e have typically disregarded representations at a
plea colloquy 'only when the allegations were highly specific and
usually accompanied by some independent corroboration.'" (quoting
United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984))).
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Ultimately, the district court's conclusion that
Dunfee's attorneys did not fail to seek out exculpatory evidence
was rooted in the district court's reasonable evaluation of the
extensive factual record before it. Where, as here, such factual
determinations underpin the denial of a motion to withdraw, we
review those determinations solely for clear error. Santiago
Miranda, 654 F.3d at 137. Dunfee would have us construe the same
factual record that was before the district court favorably to
him, and to infer the existence of evidence that he claims his
attorneys should have found. But, such inferential leaps and
second guessing are not the object of our clear error inquiry.
See Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.
1990) ("If the district court's account of the evidence is
plausible in light of the record reviewed in its entirety, the
court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the
evidence differently." (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573-74 (1985))). Recognizing that the district court
was itself constrained to apply "highly deferential" scrutiny to
counsel's performance, Strickland, 466 U.S. at 689, we find that
the district court did not clearly err when it found that Dunfee's
attorneys acted reasonably in seeking exculpatory evidence.
We may quickly dispose of the remaining bases for
Dunfee's ineffective assistance claim. Dunfee claims that
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Attorney Salsberg discouraged certain defense witnesses from
testifying, although he does not identify these witnesses in his
brief. Even assuming, however, that Attorney Salsberg actively
discouraged these unnamed witnesses from testifying, this does not
raise the specter of ineffective assistance because Dunfee does
not suggest that these witnesses could have provided exculpatory
(or even relevant) testimony had the case proceeded to trial.5
Next, Dunfee claims that Attorney Salsberg failed to
inform the district court, in a motion to continue filed just prior
to trial, that a continuance was necessary because Dunfee had
identified a new prospective witness. Rather, this motion
identified the reason for the requested continuance as a need to
further examine electronic records related to Dunfee's use of
Facebook. The district court promptly denied this motion.
To be sure, an attorney filing a motion of any kind is
obligated to "state the grounds on which it is based." Fed. R.
Crim. P. 47(b). Here, Attorney Salsberg complied with this
requirement by describing in detail his need for additional time
to examine Dunfee's use of Facebook. Although, with the benefit
of hindsight, Dunfee argues that Attorney Salsberg should have
proffered a different (or additional) reason for a continuance,
5For example, although there is some indication that Attorney
Salsberg told Dunfee's mother that her testimony would not be
helpful, she does not seem to have been in a position to offer
testimony relevant to proving Dunfee's guilt or innocence.
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the decision to request a continuance on grounds that more time
was needed to review the electronic records at issue in the case
is precisely the sort of technical, strategic decision-making that
we are loath to second guess. See Wilder v. United States, 806
F.3d 653, 660 (1st Cir. 2015) (assessing whether counsel was
ineffective by asking whether "[o]bjectively reasonable counsel
could have made a strategic choice" to do as trial counsel did),
cert. petition filed, No. 15-8799 (U.S. filed Apr. 4, 2016). This
is particularly true where, as here, the defendant is represented
by multiple attorneys, at least one of whom is vastly experienced.
See Lopez-Nieves, 917 F.2d at 647.
Finally, Dunfee claims that his attorney failed to
investigate his depression and anxiety as relevant to proving his
innocence. While the record suggests that Dunfee has a history of
mental illness, Dunfee does not explain how this fact was relevant
to his ability to commit the charged offenses or to his decision
to plead guilty. Thus, the alleged failure to pursue this line of
defense cannot form the basis of an ineffective assistance claim.
Cf. Companonio v. O'Brien, 672 F.3d 101, 110-11 (1st Cir. 2012)
(discussing ineffective assistance in the context of counsel's
decision of whether to pursue an insanity defense).
Separately, Dunfee argues that his guilty plea was
coerced because Attorney Salsberg told him that his conviction was
"guarantee[d]" if the case went to trial. "[A] guilty plea is
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involuntary and therefore invalid if it is obtained 'by . . .
coercion overbearing the will of the defendant.'" United States
v. Martinez-Molina, 64 F.3d 719, 732 (1st Cir. 1995) (quoting Brady
v. United States, 397 U.S. 742, 750 (1970)). Of course, there is
a distinction between coercion and the offering of candid legal
advice. See Lema v. United States, 987 F.2d 48, 52-53 (1st Cir.
1993). For this reason, we must be mindful of the context in which
an allegedly coercive statement is made.
Here, the record establishes that Dunfee was up against
the ropes; he faced a flurry of incriminating evidence and had
little with which to fight back. By way of example, Dunfee had
offered a full confession at the time of his arrest, the specifics
of which were verified through forensic examination of his
computers. Not one, but two federal judges had previously rejected
his alibi defense as utterly incredible, and the witnesses Dunfee
sought to use in that defense were ultimately unable to offer
helpful testimony. Thus, while a prognostication that a conviction
was "guarantee[d]" may have come as unwelcome, in this case it
certainly did not come close to rising to the level of coercion.6
6Dunfee suggests that Attorney Salsberg told deliberate lies
to him and to potential defense witnesses in an effort to prevent
the case from going to trial. The magistrate judge and the
district court independently concluded that Dunfee was untruthful
during the pretrial proceedings. Thus, we see no clear error - or,
indeed, any error at all - in the district court's rejection of
these patently incredible allegations in the absence of any sort
of evidentiary proffer.
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We thus find that Dunfee's confession was voluntary,
intelligent, knowing, and offered and accepted in compliance with
Rule 11. See Isom, 580 F.3d at 52.
ii. The Remaining Fair and Just Reason Factors
Although Dunfee focuses on voluntariness, we also
consider the strength of the reasons offered in support of
withdrawal, whether there is a serious claim of actual innocence,
the timing of the motion, and any resulting prejudice. Id.
First, for reasons we have described, Dunfee's claims of
ineffective assistance and coercion do not serve as strong bases
in support of withdrawal. What is more, his claim of innocence is
backed only by conclusory allegations and wishful conjecture as to
the possible existence of exculpatory evidence. These
unsubstantiated and self-serving claims "evince[] only weak and
implausible assertions of innocence." United States v. Sanchez-
Barreto, 93 F.3d 17, 24 (1st Cir. 1996); see also United States v.
Pellerito, 878 F.2d 1535, 1543 (1st Cir. 1989) ("When an accused
seeks to withdraw a guilty plea, the court is not obliged to treat
self-serving accounts as gospel.").
With respect to timing, Dunfee waited some two months
after pleading guilty to file his first motion to withdraw. This
extended delay weighs against permitting withdrawal. See United
States v. Pagan-Ortega, 372 F.3d 22, 31 (1st Cir. 2004) (holding
that a two-month delay between the entry of a guilty plea and a
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motion to withdraw was "well within the area of vulnerability
because of untimeliness"). What is more, we look skeptically on
motions to withdraw which follow closely on the heels of the
issuance of an unfavorable PSR, as was the case here. See Santiago
Miranda, 654 F.3d at 140 ("Because the PSR calculated a . . .
guideline sentence [of] life in prison. . . . [t]hese circumstances
suggest that it was a recalculation of risks and benefits‒not
involuntariness‒that produced [a] change of heart.").
Finally, we find that both the government and Dunfee's
victims would have been prejudiced by a withdrawal of his plea,
further tipping the scales in favor of affirmance. See United
States v. Santiago-Rivera, 805 F.3d 396, 398 (1st Cir. 2015)
(recognizing, in a child pornography case, "the severe prejudice
that the government would face were [the defendant] permitted to
withdraw his guilty plea, and the burden that his victims would
face were they forced to relive the trauma inflicted upon them so
long after they believed this case had ended").
In the final analysis, Dunfee's motions failed to
establish a fair and just reason for the withdrawal of his guilty
plea and, thus, we affirm their denial by the district court.
iii. Denial Without a Hearing
Separately, Dunfee challenges the district court's
decision not to hold a hearing on one (or both) of his motions to
withdraw. "[A]n evidentiary hearing on a motion to withdraw . . .
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is required when a defendant alleges facts which, if taken as true,
would entitle him to relief." Pulido, 566 F.3d at 57 (internal
quotation marks omitted). "Specifically, a defendant is entitled
to an evidentiary hearing unless the facts alleged are
'contradicted by the record or are inherently incredible . . .
[or] are merely conclusions rather than statements of fact.'" Id.
(quoting United States v. Crooker, 729 F.2d 889, 890 (1st Cir.
1984) (further quotation marks omitted)).
Because Dunfee did not request a hearing on either of
his motions to withdraw his plea, our review is for plain error.
See United States v. Cheal, 389 F.3d 35, 45 (1st Cir. 2004). To
prevail, Dunfee must establish "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."7 United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Here, Dunfee's claims of ineffective assistance,
coercion, and innocence were conclusory and unsubstantiated. They
were also wholly refuted by the record evidence. Thus, even had
Dunfee clearly requested a hearing in connection with either of
7 Dunfee claims that his second motion to withdraw
"indirectly" requested a hearing and, therefore, we should review
for abuse of discretion. See Santiago Miranda, 654 F.3d at 137.
We need not decide whether Dunfee adequately requested a hearing,
however, because we find that his challenge would fail under either
plain error or abuse of discretion review.
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his motions to withdraw, the district court would have been under
no obligation to grant him one. Consequently, the lack of a
hearing on either motion does not serve as grounds for reversal.
B. Reasonableness of the Sentence
Dunfee challenges his sentence as both procedurally and
substantively unreasonable. Because this challenge was not
preserved, our review is for plain error. United States v. Ruiz-
Huertas, 792 F.3d 223, 226 (1st Cir. 2015).8
i. Procedural Reasonableness
A sentence is procedurally reasonable if "the district
court committed no significant procedural error, such as . . .
failing to consider the [18 U.S.C.] § 3553(a) factors, . . . or
failing to adequately explain the chosen sentence." United States
v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). Dunfee contends that his sentence
was procedurally unreasonable because the district court did not
consider his mental illness and failed to fully explain the
sentence in light of the § 3553(a) factors. See 18 U.S.C. § 3553(c)
(requiring the court to "state . . . the reasons for its imposition
of the particular sentence"). We are not persuaded.
8 We acknowledge that the standard applicable to unpreserved
claims of substantive reasonableness is "somewhat blurred," Ruiz-
Huertas, 792 F.3d at 228, but we need not delve any deeper because
Dunfee concedes that plain error review applies to his claim.
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First, the record reveals that the district court was
acutely aware of Dunfee's mental health issues. Before imposing
the sentence, the district court observed that Dunfee has "some
anxiety disorder." Then, the court listened as defense counsel
explained his belief that Dunfee suffers from a dissociative
disorder "where he has accepted responsibility publicly . . . but
he can't now accept it." Later, the district court stated that
"[Dunfee] needs mental health evaluation and treatment. . . .
[T]here's something that doesn't allow him to see what's happened."
It is true, as Dunfee contends, that the district court
did not expressly state that mental health was among the § 3553(a)
factors that it considered in imposing sentence. But, such
excessive precision was not required, particularly where the court
was clearly mindful of the role that Dunfee's mental health had
played in the offense and his inability to accept responsibility
for it. See United States v. Turbides-Leonardo, 468 F.3d 34, 40
(1st Cir. 2006) ("[T]he sentencing court's explanation need [not]
be precise to the point of pedantry."); United States v. Clogston,
662 F.3d 588, 592 (1st Cir. 2011) ("A reviewing court should be
reluctant to read too much into a district court's failure to
respond explicitly to particular sentencing arguments. Instead,
the reviewing court must assay the record as a whole to gauge the
sentencing judge's thought process.").
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What is more, we reject Dunfee's claim that the district
court failed to adequately explain his sentence in light of the
§ 3553(a) factors. The district court expressly considered, among
other factors, the seriousness of the offense and Dunfee's lack of
remorse. The court also considered mitigating factors, including
Dunfee's work history and the fact that he had not physically
touched his victims. See 18 U.S.C. § 3553(a) (listing, among other
relevant factors, "the nature and circumstances of the offense and
the history and characteristics of the defendant" and "the need
for the sentence imposed"). Thus, we find that the district court
adequately explained Dunfee's sentence, and in any event certainly
committed no plain error. See United States v. Dixon, 449 F.3d
194, 205 (1st Cir. 2006) ("[A] sentencing court . . . is not
required to address [all of the § 3553(a)] factors, one by one, in
some sort of rote incantation when explicating its sentencing
decision.").
ii. Substantive Reasonableness
"A sentence is substantively reasonable so long as it
rests on a 'plausible sentencing rationale' and embodies a
'defensible result.'" Ruiz-Huertas, 792 F.3d at 228 (quoting
Martin, 520 F.3d at 96). Proving substantive unreasonableness is
a "heavy lift" for a defendant, particularly where, as here, the
sentence imposed is significantly below the guideline range. Id.
at 228-29.
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Dunfee makes two arguments claiming that his sentence
was substantively unreasonable. First, he claims (again) that the
district court failed to consider his history of mental illness.
But, as we have described, Dunfee's critique mischaracterizes the
sentencing hearing, at which the district court expressly
considered his anxiety and his need for mental health treatment.
Dunfee next argues that the court overemphasized his
failure to accept responsibility. This was plain error, Dunfee
maintains, because he did not receive credit for acceptance of
responsibility under the sentencing guidelines and, therefore, a
focus on this issue had the effect of penalizing him twice.
True, during sentencing, the district court referenced
Dunfee's refusal to accept responsibility and his repeated
dishonesty during the pretrial proceedings. But, in our view,
these observations were reasonable when considered in context.
Dunfee had confessed at the time of his arrest, then again on the
record during a change-of-plea hearing. Notwithstanding these
confessions and the overwhelming evidence against him, Dunfee
sought twice to withdraw his plea, inundating the district court
with a series of voluminous, but ultimately baseless filings. What
is more, both the district court and the magistrate judge felt the
need to take the unusual step of publicly chastising Dunfee for
offering false testimony. The district court thus acted within
its discretion in referencing these issues during sentencing. See
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Clogston, 662 F.3d at 593 ("[T]he weighting of [sentencing] factors
is largely within the court's informed discretion.").
Nor are we persuaded that Dunfee was doubly penalized.
Although the PSR recommended a life sentence, the district court
ultimately imposed a much shorter sentence of twenty years. And
Dunfee does not plausibly suggest that a sentence even shorter
than that would have resulted had the district court not considered
his refusal to accept responsibility.9 Thus, even if we assume,
favorably to Dunfee, that the district court erred by focusing too
intently on this issue, Dunfee could not establish that any such
error affected his substantial rights. Duarte, 246 F.3d at 60.
III. Conclusion
The judgment of the district court is AFFIRMED.
9 Indeed, Dunfee already faced a fifteen-year mandatory
minimum sentence. See 18 U.S.C. § 2251(e).
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