U.S. v. Puckett, 06-10543.

• Decision Date: 23 October 2007
• Docket Number: No. 06-10543.,06-10543.
• Citation: 505 F.3d 377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Benjamin PUCKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

505 F.3d 377

UNITED STATES of America, Plaintiff-Appellee, v. James Benjamin PUCKETT, Defendant-Appellant.

No. 06-10543.

United States Court of Appeals, Fifth Circuit.

October 23, 2007.

Renee Harris Toliver (argued), Fort Worth, TX, Susan B. Cowger, Jerri L. Sims, Dallas, TX, for U.S.

Lars Robert Isaacson (argued), Lewisville, TX, for Puckett.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellant Puckett challenges his guilty-plea conviction of and sentence for bank robbery and the associated use of a firearm. Puckett argues that he lacked capacity to plead guilty, that the government breached the plea agreement, that the district court erred in calculating his offense level, and that he suffered from ineffective assistance of counsel. We hold that plain error review governs the contention, newly raised on appeal, that the government breached the plea agreement. Finding no reversible error in this or Puckett's other issues, we affirm.

BACKGROUND

In July 2002, James Benjamin Puckett was charged in a two-count indictment with bank robbery and use of a firearm in the commission of a crime of violence. Puckett pleaded guilty to both counts on September 18, 2003. As part of the plea agreement, the government stipulated that Puckett accepted responsibility for his crimes and thus qualified for a three-level reduction in his offense level. The government also agreed to request a sentence at the low end of the applicable sentencing guidelines range. Following the plea agreement, the government filed a motion in support of the three-level reduction.

Two months after his guilty plea but before sentencing, Puckett suffered a seizure and was diagnosed with a benign tumor on the left side of his brain. He underwent surgery to remove it. At the request of defense counsel, the court ordered physical and neurological evaluations to determine Puckett's mental capacity both presently, and at the time of the offense. While the evaluations took place, the court continued the sentencing hearing numerous times at Puckett's request.

Two years after pleading guilty, Puckett filed a "Claim of Ineffective Assistance of Counsel." He argued, inter alia, that his attorney failed to investigate his brain disease and failed to pursue a defense based on diminished capacity or mental defect. Later, in November 2005, Puckett filed a motion pro se to withdraw his guilty plea. He contended that his brain tumor and bi-polar disorder rendered him incompetent to plead guilty and unable to assist in his own defense.

Without a hearing, the district court rejected the claim of ineffective assistance of counsel and denied the motion to withdraw the plea. The court found insufficient medical evidence that Puckett suffered from bi-polar disorder, and no evidence at all that Puckett's brain tumor or bi-polar disorder had rendered him incompetent. The court also noted that the psychological evaluations of Puckett were "replete" with findings of rationality, and stated that Puckett was demonstrably competent at the time of re-arraignment. Finally, the court concluded that Puckett had not shown his attorney's performance was deficient or otherwise prejudicial to Puckett's defense.

Puckett was finally sentenced. The original presentence report (PSR) from 2003 had recommended a three-level reduction in the offense level for acceptance of responsibility. Due to the delay in sentencing, the district court ordered the probation officer in March 2006 to interview Puckett and update the PSR. During those interviews Puckett admitted that, while awaiting sentencing in this case, he had helped another inmate defraud the United States Postal Service. The probation officer detailed this subsequent criminal conduct in an addendum to the PSR and recommended that Puckett receive no reduction for acceptance of responsibility. The probation officer repeated this recommendation at sentencing, and the government agreed Puckett was no longer entitled to a reduction. The government did not mention its conflicting stipulation under the plea agreement. Puckett argued the court could award the reduction despite the new criminal conduct, but he did not object on the grounds that the government had breached the plea agreement. The court declined to reduce the offense level. It did, however, sentence Puckett at the low end of the advisory guidelines range. Puckett's final sentence requires 262 months' imprisonment for bank robbery and a consecutive 84-month term on the gun count.

Puckett raises four points of error on appeal. First, he contends that the district court abused its discretion in denying his request to withdraw his guilty plea. Second, he argues the government's breach of the plea agreement renders the agreement unenforceable. Third, Puckett claims the district court erred in denying him a reduction for acceptance of responsibility. Finally, Puckett renews his ineffective assistance of counsel claim.

DISCUSSION

I. Withdrawal of the Guilty Plea

On September 18, 2003, Puckett appeared at re-arraignment and entered a plea of guilty on both counts in the indictment. Before accepting the plea, the district court fulfilled its Rule 11 obligations to question Puckett and ensure the plea was both knowing and intelligent. Satisfied on these points, the court accepted the plea. More than two years later, on November 8, 2005, Puckett filed a motion to withdraw his guilty plea. The district court denied that motion.

We review the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir.2003). There is no absolute right to withdraw a guilty plea, and the defendant bears the burden to establish a "fair and just reason" for withdrawal. Id.; United States v. Grant, 117 F.3d 788, 789 (5th Cir.1997). In determining whether the district court abused its discretion in denying the motion, this court reviews seven factors: (1) whether the defendant asserted his innocence, (2) whether withdrawal would prejudice the government, (3) whether the defendant delayed in filing the withdrawal motion, (4) whether withdrawal would inconvenience the court, (5) whether adequate assistance of counsel was available, (6) whether the plea was knowing and voluntary, and (7) whether withdrawal would waste judicial resources. Grant, 117 F.3d at 789. In applying these factors, courts are to consider the totality of the circumstances. United States v. Carr, 740 F.2d 339, 344 (5th Cir.1984).

In this case, the third and the sixth factors are particularly relevant. As to the third factor, delay, over two years elapsed between the guilty plea and Puckett's motion to withdraw his plea, with the brain tumor removal near the beginning of the period. In the past, we have held that a delay of only 22 days weighed against withdrawal of a guilty plea. Carr, 740 F.2d at 345. Here, Puckett's delay is many, many times greater than in Carr, and he offers no explanation for why he did not seek withdrawal in a more timely fashion. This factor weighs heavily against Puckett.

As to the sixth factor, Puckett fails to demonstrate that his plea was not knowing and voluntary. At re-arraignment the district court questioned and advised Puckett thoroughly concerning the details and consequences of his plea. Puckett stated repeatedly that he understood the proceedings and acknowledged his guilt. The district court's finding that his plea was intelligent and voluntary was well-supported by the record, and Puckett introduces no evidence to show otherwise. He claims his tumor caused him headaches and nausea in the months prior to his plea, but shows no proof that his mental capacity was in any way impaired. Rather, the record indicates that the tumor was benign, that it did not affect the existing brain tissue, and did not impair Puckett's ability to enter a knowing and voluntary plea.

The other factors also weigh against withdrawal. Puckett had able assistance of counsel throughout the process, as explained in greater detail below. Moreover, Puckett does not assert his actual innocence. He admits to robbing the bank but believes that the brain tumor "caused him to commit the crime in question." This bald assertion, without more, does not justify withdrawal. See United States v. Rojas, 898 F.2d 40, 43 (5th Cir.1990). Additionally, allowing withdrawal of the guilty plea — after the district court accommodated Puckett's many requests for additional time to evaluate his mental condition — would prejudice the government, inconvenience the court, and waste judicial resources. We find no abuse of discretion in the district court's decision to deny Puckett's withdrawal motion.

II. Breach of the Plea Agreement

A. Standard of Review

Puckett's second argument is that the plea agreement is invalid because the government breached it. The government concedes that it breached the plea agreement at sentencing by opposing any reduction for acceptance of responsibility. Puckett failed to object to this breach, and raises the argument for the first time on appeal. Because Puckett forfeited this error,¹ both parties agree that some sort of plain error analysis is appropriate. See United States v. Brown, 328 F.3d 787, 790 (5th Cir.2003); Fed.R.Crim.P. 52(b). The parties differ, however, as to the details of that analysis. Puckett would have us apply a rule of per se reversal any time the government breaches a plea agreement. The government, on the other hand, argues that reversal is appropriate only if Puckett can make the necessary showing of prejudice.

Each party cites Fifth Circuit caselaw in support of its position. Puckett bases his per se rule in part on United States v. Goldfaden, where the panel held that the government's breach of a plea agreement was reversible plain error. 959 F.2d 1324, 1328 (5th Cir.1992). Puckett also cites ...