U.S. v. Aker, 98-1900

• Decision Date: 07 June 1999
• Docket Number: No. 98-1900,98-1900
• Citation: 181 F.3d 167
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ALAN A. AKER, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 167

181 F.3d 167 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ALAN A. AKER, Defendant, Appellant.

No. 98-1900

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Heard June 7, 1999

Decided June 28, 1999

[Copyrighted Material Omitted] Lois M. Farmer, by appointment of the court, with whom Garnick & Scudder, P.C. was on brief for appellant.

James F. Lang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for the United States.

Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Boudin, Circuit Judge.

BOUDIN, Circuit Judge.

Alan Aker pled guilty to two drug offenses and one firearms offense and was sentenced to 121 months in prison. He now appeals, saying that the district judge should have allowed him to withdraw his guilty plea and that the judge erred in fixing his sentence. The facts that follow are drawn from the pre-sentence report and the testimony in the district court. United States v. Egemonye, 62 F.3d 425, 426 (1st Cir. 1995).

In September 1993, the police obtained a warrant to search Aker's house and car for cocaine and paraphernalia. After watching Aker conduct from his car an apparent drug transaction, the police searched the car, finding two bags of cocaine (a total of 6.7 grams) in the driver's-side ashtray, a handgun in the glove compartment, and an additional 27.3 grams of powder cocaine and 26.6 grams of crack cocaine hidden in a cooler in the back of the car. On his arrest Aker was carrying $ 1,084 in cash, and a search of his house revealed another 1.33 grams of crack cocaine and seven firearms, four of which were stolen.

Aker was then indicted by a grand jury and released pending trial. By a superceding indictment returned in September 1994, Aker was charged with four offenses: possession with intent to distribute cocaine, 21 U.S.C. 841(a)(1); possession with intent to distribute cocaine base, id; use and carriage of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. 924(c); and possession of stolen firearms, 18 U.S.C. 922(j). These charges were pending against him when his trial began about a year later.

After his indictment but before trial, the police witnessed another apparent drug transaction involving Aker. On March 14, 1995, a confidential informant set up a monitored purchase with Aker, who told the informant that he (Aker) would leave an agreed-upon amount of drugs under a designated dumpster. After the confidential informant provided Aker with the money, the police found the designated drugs (6.5 grams of crack cocaine) under the dumpster. This incident was not included in Aker's indictment and conviction, but it was considered relevant conduct for the purposes of sentencing.

At Aker's trial in June 1995, Aker's lawyer admitted in his opening that the drugs in the front of Aker's car belonged to Aker but said they were intended for personal use and that Aker knew nothing of the drugs in the back; the latter, said counsel, had been placed there by Tony Jones, the boyfriend of Aker's sister Karen. Two days later, as the trial continued, the prosecutor advised the defense that he had learned that Tony Jones was an informant for the Fitchburg police and that Jones had denied owning the drugs in the back of the car; instead, Jones claimed to have agreed with Aker to testify falsely that the drugs belonged to Jones.

Aker then struck a deal with the government, which agreed to dismiss the firearm count under section 924(c) in exchange for Aker's guilty plea on the other three counts. Since section 924(c) carries a mandatory consecutive sentence of five years, 18 U.S.C. 924(c)(1)(A)(i); U.S.S.G. 2K2.4, the benefit of the bargain to Aker was obvious. The judge conducted a change of plea hearing in which Aker admitted that he had committed the drug crimes charged in the indictment and had known that firearms kept in his house were stolen. The judge accepted the guilty pleas to the three counts in question, dismissed the 924(c) count, and ordered a pre-sentence report.

The first pre-sentence report (there were later amendments) was issued in August 1995 and was contested in several respects by Aker's attorney. Delays then ensued. Aker's trial attorney withdrew in January 1996, and in April 1996, Aker filed a pro se motion to withdraw his guilty plea. A new defense counsel was appointed and a psychological evaluation obtained for Aker. On April 6, 1998, the district court held a hearing on Aker's motion to withdraw the guilty plea and received testimony--discussed below--from Aker, his sister Deborah, and Dr. Ebert, the psychologist retained to examine Aker.

Following the hearing, the district court denied Aker's motion to withdraw his guilty plea. Thereafter, Aker filed a motion in May 1998, requesting a downward departure. At sentencing on July 15, 1998, the district court denied the departure request and also refused to make a reduction in the offense level for acceptance of responsibility. Instead, attributing to Aker the drugs seized in September 1993 and March 1995, the court computed the base offense level at 28, enhanced this figure two levels for possession of the gun found in the glove compartment, and sentenced Aker (at the bottom of the resulting range) to 121 months.

On appeal, Aker's first claim is that the district court erred in refusing to allow him to withdraw his guilty plea. The district court may permit withdrawal of a guilty plea before sentencing if the defendant shows this to be "fair and just," Fed. R. Crim. P. 32(e); but the district court's findings of fact are reviewed only for clear error, and "we accord considerable deference to the firsthand assessment ultimately made by the district court, which must be affirmed absent a demonstrable abuse of discretion." United States v. Marrero-Rivera, 124 F.3d 342, 348 (1st Cir. 1997).

There is no exclusive list of reasons that might allow withdrawal of a plea, but a primary concern is whether the original guilty plea was knowing, intelligent and voluntary under Fed. R. Crim. P. 11. Marrero-Rivera, 124 F.3d at 347. Other factors commonly mentioned are the plausibility and weight of the reason given for the withdrawal, the timing of the request, whether the defendant is now colorably asserting legal innocence, and whether the original plea was pursuant to a plea agreement (and thus, in the usual case, gained something for the defendant). Id.

When Aker pled guilty in 1995, Rule 11 was followed to the letter, and Aker squarely admitted that all of the drugs in the car were his and that he knew that some of the guns in the house had been stolen. Aker's best argument for involuntariness is, as Dr. Ebert testified, that at the time of the plea Aker was depressed over his wife's death (which allegedly led to his involvement in drugs), had gone without sleep during the trial, and had difficulty concentrating. Further, says Aker, his attorney had indicated that Aker was headed for conviction and stressed the benefit of getting the section 924(c) count dismissed. All of this, it is argued on appeal, made his plea less than voluntary.

However, Dr. Ebert testified only that Aker was depressed and the district judge found that Aker "was never depressed to a degree that deprived him of the capacity to make a knowing and voluntary choice . . . ." The district court also discounted Dr. Ebert's testimony because the court found it was based in part on crediting statements Aker made to Dr. Ebert, statements that the court said were materially false. No doubt at some point mental afflictions can undermine a guilty plea, but in this instance the district court's assessment was certainly not clearly erroneous.

Aker also says that he did not understand that dismissal of the section 924(c) count left the district judge free in computing the sentence to add two levels because the gun was found in the glove compartment. U.S.S.G. 2D1(b)(1). The two-level adjustment, which the judge might or might not find warranted, was a far cry from a mandatory five year minimum sentence, to be served consecutively to other sentences, that would have followed automatically from a conviction under section 924(c). Whatever Aker may have supposed, he got just what the government promised, namely, a dismissal of the section 924(c) charge. A guilty plea is not vulnerable merely because the defendant's own expectations as to the guideline range go amiss.

Aker's other potential argument in favor of withdrawal, although not much stressed on this appeal, was a claim of innocence at least as to the drugs in the back of the car, including the crack that gave rise to a heavy sentence. At the change of plea hearing, Aker testified--contrary to his earlier alibi--that the drugs belonged to his sister, Deborah. What made this less farfetched was that Deborah also so testified at the hearing, although her version of events would have made her guilty only of possession and not of trafficking. It is enough to say that the district judge was not clearly erroneous in choosing to credit Aker's outright admission in the plea hearing that all of the drugs were his.

Aker himself admitted that his desire to withdraw the guilty plea was prompted, at least in part, by two other factors. One was that, contrary to Aker's hope, Congress failed to agree to a proposed reduction in the guideline sentences for crack cocaine. The other was that the Supreme Court's intervening decision in Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), stiffening the requirements for conviction under section 924(c), made the dismissal of that count somewhat less valuable than at first appeared. ¹ Neither of these motives goes to the voluntariness of the plea or Aker's guilt on the counts to which he pled guilty, and both suggest that Aker's involuntariness claim owed something to an after-the-fact recalculation of risks and rewards.

Aker's next ground of...