569 F.3d 718 (7th Cir. 2009), 08-3882, United States v. Hoke

Docket Nº:08-3882.
Citation:569 F.3d 718
Opinion Judge:RIPPLE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HOKE, Defendant-Appellant.
Attorney:George A. Norwood (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee. Robert Herman, (argued), Schwartz, Herman & Davidson, St. Louis, MO, for Defendant-Appellant.
Judge Panel:Before POSNER, RIPPLE and WOOD, Circuit Judges.
Case Date:June 25, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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569 F.3d 718 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert E. HOKE, Defendant-Appellant.

No. 08-3882.

United States Court of Appeals, Seventh Circuit.

June 25, 2009

Argued April 7, 2009.

Page 719

George A. Norwood (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Robert Herman, (argued), Schwartz, Herman & Davidson, St. Louis, MO, for Defendant-Appellant.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Robert Hoke was indicted for the receipt and possession of child pornography in violation of 18 U.S.C. § § 2252A(a)(2)(A) and 2252A(a)(5)(B). After the Government rested its case, Mr. Hoke pleaded guilty to both counts. He later moved to withdraw his guilty plea, but the district court denied his motion. The court sentenced Mr. Hoke to 121 months' imprisonment and five years' supervised release. In this appeal, Mr. Hoke contends that the court abused its discretion by not allowing him to withdraw his guilty plea. He also claims that the district court denied him his right of allocution in violation of Federal Rule of Criminal Procedure 32(i)(4)(A). For the reasons set forth in this opinion, we affirm the judgment of the district court.

A. Motion to Withdraw Guilty Plea

1.

On January 8, 2008, Mr. Hoke was charged with receipt of child pornography and possession of child pornography. A jury trial commenced on June 16, 2008, and the Government rested its case the following day. After Mr. Hoke heard all of the evidence against him, he pleaded guilty to both counts. Before accepting the plea, the district court advised and questioned Mr. Hoke as required by Rule 11(b)(1) of the Federal Rules of Criminal Procedure. The district court placed Mr. Hoke under oath and questioned him to ensure that he understood English and that he was satisfied with his representation. The court went through each count of the indictment and, although the Government already had presented its evidence during its case-in-chief, required the prosecutor to state, with respect to each count, the evidence upon which the Government relied. The court also assured itself that Mr. Hoke understood the length of the sentence he could receive and the conditions governing his subsequent release. The court also advised him of the rights that he could exercise if he elected to proceed with the trial. With regard to sentencing, the court told Mr. Hoke that the United States Sentencing Guidelines are advisory and that it would consider the Guidelines, any statutory mandatory minimum and the factors enumerated under 18 U.S.C. § 3553(a). Throughout the process, the court ensured that Mr. Hoke understood the advice given to him. After verifying that no threats or promises had been made to Mr. Hoke and determining that his plea was a " free and voluntary act," the court accepted his guilty plea. R.94 at 8.

On August 18, Mr. Hoke wrote a letter to the court seeking to withdraw his plea of guilty. Two days later, Mr. Hoke's

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attorney moved to withdraw as counsel; the district court granted the motion and appointed new counsel. On October 1, Mr. Hoke moved to withdraw his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B).

At a subsequent hearing, Mr. Hoke maintained that...

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