United States v. Merritt , 755 F.3d 6 ( 2014 )

United States Court of Appeals
For the First Circuit
Nos. 12-2111
13-1622
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD MERRITT,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Kayatta, Circuit Judges.
Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer
& Associates were on brief, for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
June 16, 2014
SELYA, Circuit Judge. This is the second in a matched
set of bookend cases. In the earlier case, we rejected the appeal
of Larry Wilkins to set aside his conviction and sentence because
of a notorious scandal that shook public confidence in a
Massachusetts state testing laboratory. See Wilkins v. United
States (Wilkins II), ___ F.3d ___ (1st Cir. 2014) [No. 13-1637,
slip op. at 14].
This time around, the appellant is Wilkins's accomplice,
Ronald Merritt. Although the appellant enjoys a more lenient
standard of review, we conclude that the court below did not abuse
its discretion in refusing to allow him to withdraw his guilty
plea. We also conclude that the appellant's sentence is
substantively reasonable.
I.
Background
These appeals arise out of the same fateful transaction
that we described in Wilkins II. We outline the structure of this
transaction. On April 23, 2011, an undercover police officer
posing as a customer in search of a fix approached the appellant in
a Boston neighborhood reputed to be a haven for drug dealers. The
appellant agreed to make the sale and, after receiving payment,
crossed the street, gave the cash to his supplier (Wilkins), and
returned to give the undercover officer a bag of what appeared to
be crack cocaine. These events are described in greater detail in
-2-
Wilkins II, ___ F.3d at ___ [slip op. at 2-4], and we assume the
reader's familiarity with that opinion.
Wilkins and the appellant were jointly indicted for
possession of crack cocaine with intent to distribute. See 21
U.S.C. § 841(a)(1). After initially maintaining his innocence, the
appellant entered a straight guilty plea (that is, a guilty plea
unaccompanied by a written plea agreement). The government,
however, made clear that it would recommend a below-the-range
sentence.
At the change-of-plea hearing, the government's version
of events prominently featured the fact that the substance involved
in the street corner transaction was crack cocaine. The appellant
admitted the truth of that account. The district court accepted
the guilty plea and scheduled the disposition hearing for September
7, 2012.
Roughly a week before the scheduled sentencing date, news
broke of problems associated with Annie Dookhan, a chemist at the
William A. Hinton State Laboratory Institute. See Wilkins II, ___
F.3d at ___ [slip op. at 4-5]. Because Dookhan was the chemist who
had certified that the substance trafficked in the appellant's case
was crack cocaine, the appellant's counsel told the sentencing
court that the news (which at that point was limited to reports
that Dookhan had breached laboratory protocols) would likely be the
basis of a future effort to rescind his plea. Despite this
-3-
foreshadowing, the court and the parties agreed to proceed with
sentencing, reserving to the appellant the right to move to
withdraw his plea at a later date. The court then imposed an 84-
month term of immurement, which was appealed.
In the ensuing weeks, a state police investigation
revealed the full extent of Dookhan's perfidy, including her
deliberate contamination of certain samples and her certification
of others without chemical testing. Although no evidence linked
any of these pernicious practices directly to the appellant's case,
he nonetheless moved to withdraw his plea. See Fed. R. Crim. P.
11(d)(2)(B).
The district court heard arguments on this motion in
tandem with arguments on Wilkins's petition to set aside his
conviction and sentence under 28 U.S.C. § 2255. In an omnibus
rescript, the court denied relief to both men. See United States
v. Wilkins (Wilkins I), 943 F. Supp. 2d 248, 259 (D. Mass. 2013).
Pertinently, the court concluded that the appellant had not shown
that Dookhan's misconduct was material to his guilty plea and,
therefore, he lacked any founded basis for contending that his plea
was involuntary. See id. at 258. The appellant appealed from this
order, and we consolidated his two appeals.
-4-
II.
Analysis
Before us, the appellant advances two claims of error.
We treat them separately.
A.
Plea Withdrawal
We start with the appellant's claim that the district
court erred in denying his request to withdraw his guilty plea.
The "fair and just reason" rubric usually applies only to plea-
withdrawal motions made before sentencing. See Fed. R. Crim. P.
11(d)(2). Here, however, the parties agree that because the
appellant reserved his right to seek such a withdrawal prior to
sentencing, the "fair and just reason" standard applies (not the
more stringent standard for collateral relief described in Wilkins
II, ___ F.3d at ___ [slip op. at 6-7]). The district court
accepted this agreement, and so do we.
The "fair and just reason" standard for plea withdrawal
derives from Federal Rule of Criminal Procedure 11(d)(2)(B). Under
this rule, a court may permit such a withdrawal if "the defendant
can show a fair and just reason for requesting" that relief.
Although this gives a defendant the benefit of a permissive
standard, it does not endow him with an unfettered right to retract
a guilty plea. See United States v. Mercedes Mercedes, 428 F.3d
355, 359 (1st Cir. 2005).
-5-
Mindful that a district court's close relationship to the
plea process affords it a superior coign of vantage, we review a
district court's denial of a motion to withdraw a plea solely for
abuse of discretion. See United States v. Gonzalez-Vazquez, 34
F.3d 19, 22 (1st Cir. 1994). The devoir of persuasion rests with
the movant. See United States v. Parrilla-Tirado, 22 F.3d 368, 371
(1st Cir. 1994).
In determining whether a defendant who seeks to retract
his plea has carried his burden, an inquiring court must consider
the totality of the circumstances. See Mercedes Mercedes, 428 F.3d
at 359. This inquiry often gives particular weight to four
factors. A typical starting point is to ascertain whether the plea
was voluntary, intelligent, and informed when tendered. See United
States v. Gates, 709 F.3d 58, 68 (1st Cir.), cert. denied, 134 S.
Ct. 264 (2013). "From that starting point, the inquiry customarily
should expand to factors such as the strength of the reasons
proffered by the defendant as a basis for withdrawing his plea, the
timing of the motion, and the force of any assertion of legal
innocence." Id. at 68-69. If the court concludes that the balance
of all the relevant factors tilts in favor of the defendant, then
— and only then — should the court proceed to factor in the
prejudice (if any) that the government would suffer were the court
to allow the motion to withdraw. See United States v. Doyle, 981
F.2d 591, 594 (1st Cir. 1992).
-6-
Against this backdrop, the appellant strives to persuade
us that his guilty plea was involuntary and uninformed because he
had no knowledge of the Dookhan scandal when he tendered it. We
are not convinced that the district court abused its discretion in
concluding otherwise.
The district court supportably characterized the evidence
of both Wilkins's and the appellant's guilt as "overwhelming."
Wilkins I, 943 F. Supp. 2d at 258. In passing upon Wilkins's
appeal, we agreed. See Wilkins II, ___ F.3d at ___ [slip op. at 9-
11]. While the basis for that characterization is more fully
explained in those previous opinions, we summarize it here.
The appellant was the retailer in a prototypical street
corner drug "buy." In addition to his role in the transaction, he
had on his person what appeared to be another bag of crack cocaine
(which the appellant, when arrested, accused the undercover officer
of planting). His supplier (Wilkins) had a stockpile of similar
bags, one of which field-tested positive for crack cocaine.
Thirteen other bags from that stockpile, never touched by Dookhan,
were subsequently tested by a state police chemist and yielded
uniformly positive results. See id. [slip op. at 9-10].
This evidence strongly suggests the appellant's guilt —
and none of it depends in any way on Dookhan. We think it follows
that the evidence of Dookhan's skullduggery was not enough to
render the appellant's guilty plea involuntary or uninformed.
-7-
The appellant balks at this conclusion. To begin, he
points to his lawyer's affidavit, which asserts that if the lawyer
had known of the wide-ranging nature of Dookhan's misconduct, he
would not have recommended that the appellant plead guilty. In the
appellant's view, this self-serving affidavit trumps any judicial
appraisal of the strength of the government's case. We do not
agree.
In the plea-withdrawal context, an objective standard
governs the inquiry into materiality. See Ferrara v. United
States, 456 F.3d 278, 294 (1st Cir. 2006). Thus, the subjective,
post hoc assertions of defense counsel do not possess decretory
significance. See, e.g., Hill v. Lockhart, 474 U.S. 52, 59-60
(1985); Miller v. Angliker, 848 F.2d 1312, 1323 (2d Cir. 1988). As
opposed to blind subservience to defense counsel's affidavit, the
task confronting the district court demanded an objective analysis,
informed by the effect, if any, that Dookhan's misconduct was
likely to have had on the appellant's chances at trial. That is
exactly how the court below approached this matter.1
In Wilkins II, we explained in some detail why Dookhan's
wrongdoing did not give rise to a viable defense. See ___ F.3d at
1
The district court's passing remark that it was "[r]elying
on its own experience," Wilkins I, 943 F. Supp. 2d at 258, does not
suggest the contrary. Judges are appointed largely on the basis of
their knowledge and experience, and this turn of phrase served
merely to emphasize that the weight of judicial experience informed
the court's objective analysis.
-8-
___ [slip op. at 9-13]. What we said in that regard applies
equally to the appellant. But in an effort to blunt the force of
this explanation, the appellant contends that Dookhan's perfidy
paved the way for a defense that was available to him and not to
his accomplice. He notes that even though testing by the second
chemist revealed uniformly positive results for the virgin bags
drawn from Wilkins's stockpile,2 none of those bags was
attributable to him. Thus, he might have been able to assert that
his involvement was merely in a counterfeit drug deal.
We think that the district court did not abuse its
discretion in concluding that this phantasmagoric gambit would not
have been worth a roll of the dice. There is not a sliver of
evidence that anyone connected with this transaction ever
contemplated a sham sale, and the fact that Wilkins's stockpile
(from which the bag sold by the appellant was taken) consistently
tested positive for cocaine argues persuasively that only genuine
drugs were being trafficked that day. Moreover, the district court
supportably found that such a sham was "barely within the rim of
the remotely possible," inasmuch as "any sale of a sham drug [would
have been] extremely dangerous to" Wilkins qua supplier. See
Wilkins I, 943 F. Supp. 2d at 258 n.11.
2
For the benefit of the curious reader, we note that the
circumstances of this second round of testing are fully described
in Wilkins II, ___ F.3d at ___ [slip op. at 10], and in Wilkins I,
943 F. Supp. 2d at 252-53.
-9-
To cinch matters, the appellant has never maintained that
this counterfeit drugs scenario (or for that matter any other
exonerative tale) has any grounding in reality. To the contrary,
the appellant admitted his factual guilt at the change-of-plea
hearing — an admission from which he has never retreated. Such a
set of circumstances militates powerfully against reversing a trial
court's denial of a plea-withdrawal motion. See United States v.
Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000); Gonzalez-Vazquez, 34
F.3d at 23.
To be sure, one important factor — timing — counsels in
the appellant's favor. The appellant raised the issue of Dookhan's
misconduct promptly and only delayed moving to withdraw the plea
with the government's acquiescence.3
But timing alone is not enough to tip the scales. Even
though, prior to sentencing, "the district court should liberally
allow withdrawal of guilty pleas for any fair and just reason,"
United States v. Mescual-Cruz, 387 F.3d 1, 6 (1st Cir. 2004)
(internal quotation marks omitted), liberal allowance is not to be
confused with automatic allowance. The words "fair and just
reason" must mean something more than that a defendant has had
second thoughts about his plight. We cannot fault the court below
3
Of course, the appellant derived twin benefits from the
delay. It gave him a chance both to learn the gory details of the
Dookhan scandal and to preview his sentence before deciding whether
to press ahead with an effort to withdraw his plea.
-10-
for declining to allow a plea withdrawal where, as here, the record
supports a finding that Dookhan's transgressions were not material
to the appellant's guilty plea.
In a last-ditch endeavor to change the trajectory of the
debate, the appellant invokes the ideal of "fundamental fairness"
in the plea-bargaining context. But this exhortation is offered at
so high a level of generality that it lacks any real bite, and the
appellant has not given us any plausible reason to believe that his
decision to plead guilty was tainted by unfairness. Rule
11(d)(2)(B) itself accounts for fairness concerns when an appellant
seeks to withdraw his plea — and the district court applied the
strictures of that rule meticulously.
That ends this aspect of the matter. We hold that the
district court acted within the encincture of its discretion when
it found that the appellant had failed to proffer a fair and just
reason in support of his motion to withdraw his plea. The order
denying that motion is, therefore, unimpugnable.
B.
Reasonableness of Sentence
We turn now to the appellant's second claim of error: his
challenge to the reasonableness of his sentence. Due to an
overabundance of prior convictions, mostly for domestic violence
crimes, the appellant was classified as a career offender. See
USSG §4B1.1. This classification, in combination with his total
-11-
offense level, yielded a guideline sentencing range (GSR) of 151 to
188 months. At sentencing, the district court varied downward from
the GSR and imposed an 84-month incarcerative term.
The appellant assigns error to this sentencing
determination. Our standard of review is familiar: we review
claims of sentencing error for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007). Our analysis proceeds in
accordance with a two-step pavane. We first resolve any claims of
procedural error and, if no such error appears, we then inquire
into the substantive reasonableness of the challenged sentence.
See id.; United States v. King, 741 F.3d 305, 307-08 (1st Cir.
2014).
The appellant's challenge is narrowly focused. He does
not contest the district court's guideline calculations. By the
same token, he eschews any claim of procedural error. Rather, he
complains about the ultimate sentencing determination, arguing that
the district court gave too much weight to his criminal history.
Specifically, he argues that the court failed to take properly into
account that the vast majority of his 26 prior convictions did not
involve drugs and that, in all events, he was well rehabilitated.
This plaint contains more cry than wool. "The linchpin
of our review for substantive reasonableness is a determination
about whether the sentence reflects a plausible . . . rationale and
a defensible result." King, 741 F.3d at 308 (alteration in
-12-
original) (internal quotation marks omitted). There is nothing
implausible or indefensible about the weight given by the district
court to the appellant's lengthy criminal history. Both Congress
and the Sentencing Commission have made pellucid that career
offender designations are serious business, not to be treated
lightly. See 28 U.S.C. § 994(h); USSG §4B1.1, comment. (backg'd.).
Here, the court carefully evaluated the appellant's record of
convictions, paying attention (at defense counsel's urging) to both
the nature of the appellant's past crimes and his profession of
rehabilitation. That the court was not as impressed by these
palliative arguments as the appellant might have hoped does not
itself signal an abuse of discretion. See United States v.
Clogston, 662 F.3d 588, 593 (1st Cir. 2011). After all, a
sentencing court has the right — indeed, the duty — to make
evaluative judgments. For aught that appears, the court below
exercised this authority in a reasonable and responsible way.
If more were needed — and we doubt that it is — the
sentence fell well below the bottom of the appellant's properly
calculated GSR. "It is a rare below-the-range sentence that will
prove vulnerable to a defendant's claim of substantive
unreasonableness." King, 741 F.3d at 310. Given the
-13-
circumstances, this case falls within that general rule, not within
the long-odds exception to it.4
III.
Conclusion
We need go no further. As in Wilkins II, "[w]e write
without attempting to lay down any broad rule to govern all
Dookhan-related cases." ___ F.3d at ___ [slip op. at 14]. The
Dookhan scandal, though disgraceful, does not open the door for the
appellant to mount any promising defense and, given the thorough
change-of-plea colloquy and the potent evidence of his guilt, the
district court did not abuse its discretion in finding no fair and
just reason for allowing the appellant to withdraw his guilty plea.
Nor did the sentence imposed by the court transcend the realm of
reasonableness.
Affirmed.
4
The appellant laments the ostensible unfairness of a seven-
year sentence for his role in peddling less than a tenth of an
ounce of crack cocaine. But the appellant's focus is out of
kilter: the duration of the sentence is largely a function of the
appellant's lengthy criminal history, which happened to culminate
in a small-time drug deal. Viewed in this refocused light, the
sentence appears neither unfair nor unreasonable.
-14-