U.S. v. Bazuaye

Citation991 F.2d 791
Decision Date05 March 1993
Docket NumberNo. 92-5315,92-5315
PartiesNOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Jeromi Horns BAZUAYE, a/k/a Joromi Bazuaye, a/k/a Jeromi Duzuaye, a/k/a Joromi Duzuaye, Defendant-Appellant. . Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-91-508-A)

Argued: David Scott Bracken, Law Offices of John T. Donelan, Alexandria, Virginia, for Appellant.

Thomas Higgins McQuillan, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

On Brief: Richard Cullen, United States Attorney, Alexandria, Virginia, for Appellee.

E.D.Va.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Before WIDENER and HAMILTON, Circuit Judges, and POTTER, United States District Judge for the Western District of North Carolina, sitting by designation.

PER CURIAM:

In this appeal, the principal contention of the appellant, Jeromi Horns Bazuaye, is that the district court abused its discretion in determining that he did not demonstrate a "fair and just reason" for withdrawal of his guilty plea to possessing, with the intent to defraud, fifteen or more counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). Bazuaye also attacks his sentence on numerous grounds. Finding that the district court did not abuse its discretion in refusing to vacate Bazuaye's guilty plea, but erred in two minor respects concerning Bazuaye's sentence, we affirm in part, vacate in part, and remand with instructions.

I

On October 16, 1991, Bazuaye was arrested by Secret Service agents in the District of Columbia. On that date, Secret Service agents followed Bazuaye's automobile from his home in Arlington, Virginia, to the District of Columbia and arrested him after his vehicle was stopped. A search of the automobile pursuant to a warrant revealed seven counterfeit or unauthorized credit cards. During a later search of Bazuaye's residence, the Secret Service agents discovered an additional counterfeit or unauthorized credit card, and two notebooks containing at least seven counterfeit or unauthorized credit card numbers.

On December 12, 1991, a federal grand jury returned a twelvecount indictment against Bazuaye charging violations of numerous federal statutes. On February 21, 1992, pursuant to a plea agreement, Bazuaye pleaded guilty to count three of the indictment: possessing, with the intent to defraud, fifteen or more counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3).

At the Fed. R. Crim. Proc. 11 hearing on February 21, 1992, a boilerplate colloquy took place in which Bazuaye acknowledged, among other things, that:

(a) he received a copy of the indictment and had gone over it with his attorney;

(b) he understood the charges pending against him;

(c) he told his attorney all the facts about the case;

(d) his attorney had discussed with him the nature of the charge and any possible defense he might have to the charge;

(e) he was satisfied with the representation of his attorney;

(f) if his plea were accepted, he could be imprisoned for as long as ten years or pay a fine of up to $250,000 or both;

(g) he could choose to plead not guilty and go to trial;

(h) other than the agreement as set out in the plea agreement, no officer of the United States or member of the United States Attorney's Office or any other government agent made any promises or suggestions to him that by pleading guilty he would receive a lighter sentence;

(i) no person made any promises or threats to him to induce him to plead guilty;

(j) the written statement of facts signed by him and his attorney reflected his conduct; and

(k) he made no claim of innocence with respect to count three of the indictment.

Joint Appendix (J.A.) at 36-42. Counsel for Bazuaye also stated that in his opinion Bazuaye's guilty plea was voluntarily and understandingly made. Thereafter, the district court found that the guilty plea was voluntarily and understandingly made, accepted the guilty plea, and found the defendant guilty as charged in count three of the indictment.

Approximately eight weeks later, Bazuaye filed a pro se motion to withdraw his guilty plea and a pro se motion to vacate his guilty plea, conviction and dismissal of charges. In support of his motions, Bazuaye, among other things, alleged that: (a) his counsel, Robert Stanley Powell, informed him that the Sentencing Guidelines provided for a sentence of ten to sixteen months, but assured him that he would receive a six month sentence if he cooperated with the government; (b) Powell told him that the government could only use the factual basis of count three for sentencing purposes (approximately $15,000); (c) he was threatened by an Assistant United States Attorney, Thomas McQuillan, with the possibility of more charges and at least ten years in prison if he did not sign the plea agreement; (d) he was intimidated, coerced, and threatened by his own counsel and the Assistant United States Attorney to sign the plea agreement; and (e) without evidentiary support, he was not guilty.

The government filed a response which read in part:

The government flatly denies BAZUAYE'S contention that he was threatened during the meeting of January 29, 1992. At the time of the meeting, BAZUAYE was charged in a 12 count indictment. Counsel for BAZUAYE advised the government that the defendant was interested in pleading guilty, but did not agree with the terms of a proposed plea agreement. The meeting, which BAZUAYE agreed to, was held in the presence of then-counsel, Charles G. Aschmann, Jr. The purpose of the meeting was to discuss the terms and effect of the contemplated plea agreement. No threats were made, and, importantly, the defendant never did enter into the plea agreement discussed at that meeting.

J.A. at 356.

At the sentencing hearing, the district court denied Bazuaye's motions without an evidentiary hearing and sentenced Bazuaye to thirty-six months' imprisonment, five years' supervised release, and a $50 special assessment. The district court's judgment, however, reflected a sentence of thirty-seven months. Bazuaye noted a timely appeal.

II

We review the district court's denial of a motion to withdraw a guilty plea under Fed. R. Crim. Proc. 32(d) for an abuse of discretion. United States v. Craig, No. 92-5145, slip op. at 5 (4th Cir. February 8, 1993) (citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied, 112 S. Ct. 171 (1991)). To prevail on appeal, Bazuaye must demonstrate that "the district court abused its discretion in determining that [he] had not shown 'a fair and just reason' for being allowed to withdraw his guilty plea...." Craig, slip op. at 5 (citing Moore, 931 F.2d at 248)). In Moore, we noted several factors that may be considered in determining whether a defendant has met his burden under Rule 32(d):

(1)Whether the defendant has offered credible evidence that his plea was not knowing or voluntary;

(2)Whether the defendant has credibly asserted his legal innocence;

(3)Whether there has been a delay between the entering of the plea and the filing of the motion;

(4)Whether the defendant has had close assistance of competent counsel;

(5)Whether withdrawal will cause prejudice to the government; and

(6)Whether withdrawal will inconvenience the district court or waste judicial resources.

Id., 931 F.2d at 248 (citations omitted).

Initially, we note that factors (2) and (3) militate against withdrawal. Beyond his bald allegation, Bazuaye has not credibly asserted his innocence, and eight weeks passed between the time of his guilty plea and the filing of the motion to withdraw, a span which the court in Craig found to be excessive. Craig, slip op. at 5. Because of a dearth of evidence in the record, we follow the analysis in Craig and treat factors (5) and (6) as neutral for the purposes of our discussion. Id., slip op. at 6.

Bazuaye argues that under factors (1) and (4) he has demonstrated "a fair and just reason." Unfortunately for Bazuaye, as to those factors, they also weigh decidedly in the government's favor. Bazuaye argues that his plea was not: (a) voluntary because it was the product of threats and coercion by his own defense counsel and by the government; and (b) knowingly made because it was based on ineffective assistance of counsel.

With respect to the voluntariness of the plea, Bazuaye directs our attention to his allegation that his counsel and the Assistant United States Attorney coerced him into accepting the plea. Putting aside the obvious overlap between this argument and Bazuaye's argument on the ineffective assistance of counsel, we note that Bazuaye stated in his plea agreement that his plea was voluntary and no threats were made against him. The district court confirmed these facts during the Rule 11 colloquy. In addition, counsel for Bazuaye proffered to the district court that in his opinion Bazuaye's plea was voluntarily and understandably made. Finally, Bazuaye stated that he was satisfied with his counsel's services.

In United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en banc), we noted: "Statements of fact by a defendant in a Rule 11 proceeding may not ordinarily be repudiated...." In light of the statements of Bazuaye and his counsel at the Rule 11 proceeding, the baldness of Bazuaye's coercion allegations and the government's response to those allegations, and Lambey 's formidable barrier, factor (1) militates heavily against withdrawal.

Under factor (4), to constitute a "fair and just reason"...

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