United States v. Solomon ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-1-2009
    USA v. Solomon
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-1938
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
    Recommended Citation
    "USA v. Solomon" (2009). 2009 Decisions. Paper 1264.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1264
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    Nos. 07-1937 and 07-1938
    ___________
    UNITED STATES OF AMERICA
    v.
    WANDA SOLOMON
    Appellant.
    ___________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Criminal Nos. 05-cr-00350-2 and 05-cr-00385-3)
    District Judge: The Honorable Terrence F. McVerry
    ___________
    Submitted Under Third Circuit LAR 34.1(a)
    May 22, 2009
    BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
    (Filed on: June 01, 2009 )
    ___________
    OPINION OF THE COURT
    ___________
    NYGAARD, Circuit Judge.
    Appellant, Wanda Solomon, was indicted in two separate indictments. The first
    indictment charged her with conspiracy to distribute crack cocaine, a violation of 21
    U.S.C. § 846 from August 2004 until August 2005. Count One of the superceding
    indictment charged her with conspiracy to distribute 5 kilograms or more of cocaine from
    1999 until November, 2005, in violation of 21 U.S.C. § 846. Solomon entered into a plea
    agreement with the Government, whereby she agreed to plead guilty to one count of drug
    conspiracy from each indictment.
    The plea agreement included a broad appeal-waiver provision precluding Solomon
    from appealing her conviction or sentence unless the Government appealed or the
    sentence exceeded the statutory limits or unreasonably exceeded the Guidelines range.
    Before sentencing, Solomon filed a motion to withdraw her guilty plea, which was
    directed to the count in the superceding indictment. The District Court denied the motion
    and sentenced her to 240 months' incarceration, a $100 special assessment, and five years'
    supervised release. On appeal, Solomon argues that the District Court should have
    granted her motion to withdraw her guilty plea, and also that her sentence was
    unreasonable. We will affirm.
    It is well-established law that a defendant in a criminal case may waive any right,
    even a constitutional right, by means of a plea agreement. An appeal of a denial of a
    motion to withdraw a guilty plea constitutes a challenge to a defendant's conviction that
    falls within the plain language of an appellate waiver provision. We find her waiver of
    2
    appellate rights enforceable. The language of the plea agreement is clear as to its purpose
    and effect. See United States v. Gwinnett, 
    483 F.3d 200
    , 203 (3d Cir. 2007). Solomon did
    not enter a conditional plea pursuant to F ED.R.C RIM.P. 11(a)(2) nor did she identify any
    issues she wanted preserved for appeal. Solomon signed the agreement, acknowledging
    that she had fully discussed it with her attorney. Solomon does not contend that her
    appellate waiver was unknowing or involuntary or that it works a miscarriage of justice.
    Indeed, her appellate brief is silent on the matter of appellate waiver. Additionally, the
    District Court’s colloquy on the appellate waiver was a model of compliance with the
    requirements of F ED.R.C RIM.P. 11 and reflects the District Judge’s conscientious effort
    to ensure that the waiver was knowing and voluntary. The District Court explained that
    Solomon was giving up substantial appellate rights in the plea agreement, and Solomon
    confirmed that she understood the effect of the appellate waiver provision.
    Furthermore, even when we review the merits, we conclude that Solomon has not
    established that the District Court abused its discretion in denying her motion to withdraw
    her guilty plea. A district court considers three factors when evaluating a motion to
    withdraw a guilty plea: (1) whether the defendant asserts her innocence; (2) the strength
    of the defendant’s reasons for withdrawing her plea; and (3) whether the government
    would be prejudiced by the withdrawal. The Government is not required to show
    prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of
    a plea.
    3
    The District Court did not abuse its discretion here. As to the first factor,
    Solomon’s claim of innocence is primarily based on her not knowing one of the co-
    conspirators until after the conspiracy began. As the District Court acknowledged,
    Solomon’s partial lack of familiarity with a co-conspirator is of no legal significance.
    The law allows one to be convicted of conspiracy upon evidence that she knew the
    essential nature of the illicit plan and her connections with it, without requiring evidence
    that she knew all its details or all the participants therein.
    Turning to the second factor, Solomon argues that her counsel was deficient. The
    District Court concluded that her allegation is without merit. Ineffective assistance of
    counsel claims are not generally entertained on direct appeal. Nevertheless, the record
    does reflect that Solomon acknowledged during the plea colloquy that she was satisfied
    with her counsel’s performance and that she understood the charges and the facts leading
    to them. Moreover, Solomon has not pointed to anything but her own post-hoc, self-
    serving statements to undermine the District Court’s decision to reject her attack on
    counsel.
    Accordingly, we will enforce the waiver and will affirm the judgment of the
    District Court.
    4
    

Document Info

Docket Number: 07-1938

Filed Date: 6/1/2009

Precedential Status: Non-Precedential

Modified Date: 4/18/2021