U.S. v. Austin
| Decision Date | 02 August 1991 |
| Docket Number | Nos. 91-1245,91-1252,s. 91-1245 |
| Citation | 948 F.2d 783 |
| Parties | UNITED STATES, Appellee, v. Michael J. AUSTIN, Defendant, Appellant. UNITED STATES, Appellant, v. Michael J. AUSTIN, Defendant, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert M. Napolitano, for Michael J. Austin.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., on brief for U.S.
Before TORRUELLA, Circuit Judge, HILL, * Senior Circuit Judge, and SELYA, Circuit Judge.
On the eve of trial on a six count drug indictment, Appellant entered guilty pleas to all the charges. Appellant subsequently brought a motion to withdraw those guilty pleas, which was denied by the district court after a full evidentiary hearing on the motion. The district court found that the Appellant had committed perjury at this hearing. At the sentencing hearing, the district court denied Appellant's request for a two point reduction to Appellant's base offense level under Federal Sentencing Guidelines for acceptance of responsibility.
Appellant appeals from the district court ruling denying his plea withdrawal and refusal to grant the two point offense level reduction. He asserts that (1) the district judge abused his discretion in finding that Appellant was not hampered in his decision to plead guilty by ineffective assistance of counsel and (2) the district judge erred in refusing to grant a two point offense level reduction.
Appellee United States cross appeals, asserting that, upon the finding of perjured testimony by Appellant, the district court judge was required by Federal Sentencing Guidelines to impose a two point enhancement to the base offense level for obstruction of justice.
We hold that Appellant's claim of error is without merit and affirm the district court's denial of the plea withdrawal. We affirm the district court's denial of a two point offense level reduction and hold that, upon finding that the Appellant perjured himself before the district court, Federal Sentencing Guidelines mandates a two point enhancement for obstruction of justice. We remand for resentencing.
Appellant was charged in a grand jury indictment with six counts of drug trafficking offenses involving substantial amounts of cocaine. The day before the case was scheduled to proceed with jury selection and trial, the Appellant appeared before the district court and tendered a plea of guilty to each count of the indictment in an extensive and thorough Rule 11 hearing. No plea arrangement with the government existed. At the Rule 11 hearing, Appellant stated he was satisfied with counsel, had adequate opportunity to discuss the charges against him with counsel, understood his right not to plead guilty, and comprehended the full impact of his guilty pleas. Eighteen days later, the Appellant filed a Fed.R.Crim.Pro. 32(d) motion to Withdraw Pleas of Guilty, signed by newly retained counsel. The gravamen of Appellant's motion was that his guilty pleas were not voluntarily entered because, in recommending the guilty pleas at the eleventh hour before trial, previous counsel had afforded Appellant too little time to consider whether a guilty plea was appropriate and that, in essence, the guilty pleas were not informed ones. See United States v. Austin, 743 F.Supp. 72, 77 (D.Me.1990). A full evidentiary hearing on the motion to withdraw was held and after hearing testimony from both Appellant and his previous counsel the district court ruled Appellant's tendering of the guilty pleas was "a knowing and voluntary surrender of [Appellant's] right to a trial based upon his receipt of competent advice from his retained counsel." Id. at 79. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (). Finding no evidence of deficiency or lack of diligence on the part of Appellant's counsel, the district court denied Appellant's motion. It is from that ruling that Appellant brings his first appeal.
As a preliminary matter, we rule that this inquiry is properly before us. In the vast majority of ineffective assistance of counsel claims sought to be brought on direct appeal after completion of a trial on the merits, no record exists for the appellate court to examine in assessing the validity of the claim. In those situations, we have consistently held that the proper route for such a claim is in a collateral proceeding in the district court pursuant to 28 U.S.C. § 2255. See United States v. Caggiano, 899 F.2d 99, 100 (1st Cir.1990); United States v. Hoyos-Medina, 878 F.2d 21, 22 (1st Cir.1989). In a collateral proceeding, a full evidentiary hearing may be held and a full record developed. We refuse to hear the matter for the first time on appeal. Fairness to the parties and judicial economy both warrant that, absent extraordinary circumstances, an appellate court will not consider an ineffective assistance claim where no endeavor was first made to determine the claim at the district level. United States v. Hoyos-Medina, 878 F.2d at 22; United States v. Carter, 815 F.2d 827, 829 (1st Cir.1987); see United States v. Hart, 933 F.2d 80, 82 (1st Cir.1991).
In the case before us, however, the Appellant's claim is confined to matters found in the record and can be determined without the need for additional fact finding. The issue of adequacy vel non of defense counsel was placed directly before the district court. The asserted ground for the plea was ineffective assistance. In order to decide the motion to withdraw the plea, the district court held a full evidentiary hearing and made findings of fact. Consequently, the issue is properly before us on appeal and will be heard. See United States v. Caggiano, 899 F.2d at 10; Brien v. United States, 695 F.2d 10, 13 (1st Cir.1982).
Once a guilty plea has been entered, a defendant has no absolute right to withdraw that plea. United States v. Buckley, 847 F.2d 991, 998 (1st Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). Where a motion to withdraw is brought prior to sentencing, the district court should allow it only if there is a "fair and just reason" for doing so. Fed.R.Crim.Pro. 32(d); United States v. Buckley, 847 F.2d at 998. In making this determination, a number of factors are to be considered, most importantly whether the defendant's guilty plea can, in light of the tendered reason for withdrawal, still be considered a voluntary and intelligent relinquishment of a known right and otherwise in conformity with Fed.R.Crim.Pro. 11. See United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir.1989); United States v. Buckley, 847 F.2d at 79-80.
The crux of Appellant's original motion and present appeal rests on the contention that his pleas were not voluntarily entered because defense counsel, at the eleventh hour before trial, conceded no viable defense existed to the government's charges and recommended guilty pleas. 1 Appellant claims he was afforded too little time to consider whether to plead guilty. Implicit in the Appellant's claim is the assertion that he would not have given up his right to a trial had he had more time to consider counsel's recommendation on entry of the guilty pleas. The district court correctly posited the inquiry before it as determining whether counsel's performance in advising guilty pleas fell below the standard of performance of reasonable proficient counsel and whether, by such inadequate performance, Appellant was induced to enter guilty pleas which he otherwise would not have entered. United States v. Austin, 743 F.Supp. at 78; see United States v. Pellerito, 878 F.2d at 1537-38 (citing Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)).
Where ineffective assistance claims are properly before them, and the correct legal rule has been applied, appellate courts should accord high deference to the district court's ruling on the issue. United States v. Pellerito, 878 F.2d at 1538. The district court judge views the inquiry from a particularly strong vantage point, having overseen pretrial proceedings, conducted Rule 11 inquiries, accepted the original guilty pleas and heard first hand evidence on whether it should be withdrawn. Appellate courts ought ordinarily defer to these decisions made by the district court "on the front lines." Id. at 1538. Other than for clear errors in subsidiary fact finding, the trial judge's refusal to allow a guilty plea withdrawal will be disturbed on appeal only for demonstrable abuse of discretion. Id. at 1538; see United States v. Buckley, 847 F.2d at 998.
We find no clear error or discretionary abuse in the district court ruling. The Appellant's contention that counsel was somehow inefficient because he continued searching for potential defenses right up to the eve of trial is without merit. Examination of the carefully considered opinion of the district court and the record reveal no errors in the fact finding process. The Appellant conceded to the district court that the government's version of the case was substantially true and did not assert a claim of legal innocence or suggest the existence of any meritorious defenses. Appellant understood and accepted his attorney's advice to plead guilty. He was free to choose more time to decide how to plead and there is no evidence of duress, threats or harassment. No evidence has been offered which proves that reasonably proficient counsel would have concluded there was no viable defense and recommended a guilty plea sooner than retained counsel. Appellant may have, in retrospect, been...
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