United States v. Sherman Houser , 404 F. App'x 638 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
________
No. 10-1609
_________
UNITED STATES OF AMERICA
v.
SHERMAN HOUSER
a/k/a Jermaine McKelly
SHERMAN HOUSER,
Appellant
________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-07-cr-00525-003)
District Judge: Honorable Mary L. Cooper
_______
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2010
Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges
(Filed: 12/20/2010)
______
OPINION
______
1
SLOVITER, Circuit Judge.
I.
Appellant Sherman Houser pled guilty to conspiracy to distribute and possess with
intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846, and one count of aiding and abetting the possession with intent to
distribute 100 grams or more of heroin, in violation of § 841(a)(1), (b)(1)(B), and 18
U.S.C. § 2.
Early in the case, Houser’s defense counsel, Bruce Throckmorton, filed a notice of
eight pre-trial motions to be filed. Eventually, differences arose between Houser and
counsel, and Houser requested substitute counsel, which the District Court granted.
During his plea colloquy, Houser admitted his guilt. Approximately a year thereafter,
Houser filed a motion to withdraw his guilty plea, alleging that he misunderstood the
consequences of the guilty plea. Specifically, Houser claimed to believe that his
previously filed motions would still be decided after his guilty plea, referring specifically
to his motion for dismissal based on speedy trial grounds and a motion to suppress certain
evidence obtained through a wiretap and a search warrant.
He argued that because he did not fully understand the consequences of the guilty
plea, he did not knowingly and voluntarily enter into it. The District Court held a hearing
on the motion, and rejected the motion after careful consideration of the record and
testimony from both Houser and Throckmorton about their meetings and discussions.
2
Houser was sentenced to a total of 228 months in prison with four years supervised
release. He now appeals the denial of his motion to withdraw his guilty plea. 1
II.
We review the denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). A defendant may withdraw a
court-accepted guilty plea if “the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The guilty plea cannot be withdrawn on a
“whim.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).
This court considers three factors when examining a motion to withdraw a guilty
plea: “(1) whether the defendant asserts his innocence; (2) whether the government
would be prejudiced by his withdrawal; and (3) the strength of the defendant’s reason to
withdraw the plea.” Huff, 873 F.2d at 712. Defendants who move to withdraw their
guilty pleas must offer facts to show why they initially pled guilty, and why they now
assert innocence. United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). “Bald
assertions of innocence are insufficient to permit a defendant to withdraw his guilty
plea.” Jones, 336 F.3d at 252.
Houser argues that the District Court applied the wrong legal standard to his
motion to withdraw his guilty plea. We review this question of law de novo. See United
States v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994). Houser contends that instead of using the
three-part test described above applicable to defendants who moved to withdraw their
1
The District Court had jurisdiction under 18 U.S.C. § 3231. This court has
jurisdiction under 28 U.S.C. § 1291.
3
guilty pleas prior to sentencing, the Court used a standard reserved for motions brought
after sentencing. He argues that the Court erred in relying upon United States v. Crusco,
536 F.2d 21 (3d Cir. 1976), for this purpose.
We disagree. The District Court relied upon Crusco to help resolve the
reasonableness of Houser’s misunderstanding of guilty plea consequences and, from
there, to determine the strength of Houser’s reason to withdraw his guilty plea. Houser
states that: “[t]he heart of [his] motion is his ignorance of the consequences of his plea,
and its consequent lack of voluntariness.” Appellant’s Br. at 21. In Crusco, we stated:
“[w]here the record shows that ‘circumstances as they existed at the time of the guilty
plea, judged by objective standards, reasonably justified his mistaken impression,’ a
defendant must be held to have entered his plea without full knowledge of the
consequences and involuntarily.” 536 F.2d at 24, citing Mosher v. Lavallee, 491 F.2d
1346, 1348 (2d Cir. 1974). It follows that the District Court was required to consider the
reasonableness of Houser’s misapprehension to evaluate his reason for withdrawal. The
District Court applied the appropriate legal standard.
Houser fails the first part of the test because he never asserted his innocence, as he
acknowledges: “Admittedly, defendant does not assert his innocence.” Appellant’s Br.
at 19.
Second, the District Court concluded that the withdrawal of his guilty plea would
prejudice the government because of the time that had elapsed since Houser’s arrest.
Houser moved to withdraw his guilty plea over a year after he pled guilty, and over two
years after the time of his offenses. Given the time that elapsed between his guilty plea
4
and motion to withdraw that plea, the District Court did not abuse its discretion in finding
prejudice.
Third, Houser’s reasons for withdrawal of his plea relate to his alleged
misapprehension of the consequences resulting from that plea, and his assertion of not
knowingly and voluntarily entering into it. Houser claims that his ignorance of the
consequences was objectively reasonable because he lacked education and knowledge of
the legal system, repeatedly asserted his desire to have his motions heard, rejected two
plea agreements at least in part because of said motions, and alleged that the District
Court and his attorney both failed to tell him that a guilty plea meant his motions would
go unanswered.
Houser fails this part of the test as well. The District Court considered his
arguments and, using the appropriate standard from Crusco, concluded that Houser’s
misunderstanding was unreasonable. Houser repeatedly acknowledged his understanding
of the proceedings and what a guilty plea meant, including that he gave up his right to a
jury trial by pleading guilty. Although the District Court did not mention the effect
Houser’s guilty plea would have on his pretrial motions, it was unreasonable for Houser
to infer that those motions would remain relevant; they dealt with trial-related matters
and a guilty plea meant no trial would take place. Additionally, the District Court cited
Throckmorton’s notes and testimony to support the argument that Houser recognized that
a guilty plea meant waiver of pretrial motions.
5
Based on the evidence presented, the District Court determined that Houser’s
belief that his motions would remain at issue after a guilty plea was unreasonable. The
District Court did not abuse its discretion in concluding that Houser’s guilty plea was not
unknowing or involuntary.
III.
For the foregoing reasons, we will affirm the District Court’s denial of Houser’s
motion to withdraw his guilty plea.
6