U.S. v. Badger

• Decision Date: 14 February 1991
• Docket Number: Nos. 90-8114,90-8115,s. 90-8114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Eugene BADGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 101

925 F.2d 101

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Eugene BADGER, Defendant-Appellant.

Nos. 90-8114, 90-8115.

United States Court of Appeals Fifth Circuit.

Feb. 14, 1991.

Peter B. Keller, Keller & Postero, Tuscon, Ariz., for defendant-appellant.

Mark R. Stelmach, and LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Raymond Eugene Badger pleaded guilty to one count of conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1) & 846, and to one count of willfully failing to appear before the district court, in violation of 18 U.S.C. Sec. 3146(a)(1). Prior to sentencing on the individual counts, Badger made an oral motion to withdraw both pleas. The district judge denied these motions. He then sentenced Badger to 41 months imprisonment for the conspiracy count, followed by three years supervised release. He also fined Badger $5,000 and ordered a $50 special assessment. On the failure to appear count, Badger was sentenced to 19 months imprisonment followed by two years supervised release, to run consecutively to the sentence on the conspiracy charge. He also ordered an additional $50 special assessment. These two cases have been consolidated for appeal.

Badger now claims that the district judge erred in refusing to allow him to withdraw his pleas, in failing to find that he was a minimal or minor participant for purposes of a downward adjustment in his sentence for conspiracy, and in requiring a minimum period of three years supervised release for the conspiracy conviction. We vacate that part of the sentence on the conspiracy count providing for three years supervised release, and remand for reconsideration of that aspect only of the sentence. The remainder of the district court's disposition of the case is affirmed.

I. Facts

On February 8, 1988, Badger drove a borrowed automobile into the Sierra Blanca checkpoint in Hudspeth County, Texas. Co-defendant Ralph Guerin was a passenger in the car. Badger's demeanor made the border agent suspicious, and he requested permission to open the trunk of the vehicle. Badger consented both to the opening of the trunk and to the subsequent search of the bags contained therein. This search revealed 198 pounds of marihuana with an estimated street value of $158,624. These facts led to a two count indictment charging Badger and Guerin with possession of a Schedule I controlled substance in violation of 21 U.S.C. Sec. 841(a)(1), and with conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) & 846. Both Badger and Guerin were released on bond.

Badger failed to appear for trial on May 2, 1988. ¹ This failure to appear prompted a second indictment for violation of 18 U.S.C. Sec. 3146(a)(1). While still a fugitive, Badger offered information to the government in exchange for a plea agreement. The government refused to discuss any accommodation as long as Badger remained at large. Badger did not turn himself in, but instead was apprehended in California on October 23, 1989.

Badger agreed to plead guilty to the conspiracy count of the first indictment in return for dismissal of the possession count. The information offered by Badger while he was a fugitive played no role in the agreement reached between Badger and the government. He entered this plea on December 11, 1989. On January 3, 1990, he pleaded guilty to the failure to appear charge. The district judge accepted both pleas after advising Badger pursuant to Fed.R.Crim.P. 11 of the consequences of entering a plea of guilty. Sentencing for both convictions took place on January 29, 1990.

II. Request to Withdraw Plea

On the day of sentencing, Badger asked the district court for permission under Fed.R.Crim.P. 32(d) to withdraw his guilty pleas to both the conspiracy count and the failure to appear count. The district judge denied these requests. We now affirm those decisions.

Fed.R.Crim.P. 32(d) allows a district judge to permit a defendant to withdraw a guilty plea prior to sentencing upon the showing of "any fair and just reason." We will reverse a lower court's denial of a motion to withdraw a guilty plea only for abuse of discretion. United States v. Clark, 917 F.2d 177, 180 (5th Cir.1990); United States v. Daniel, 866 F.2d 749, 752 (5th Cir.1989). Although Rule 32(d) should be construed and applied liberally, there is no absolute right to withdraw a guilty plea. United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986).

In United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985), we set out seven factors for the district courts to consider when ruling on a Rule 32(d) motion: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether adequate assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. No single factor or combination of factors mandates a particular result. Instead, the district court should make its determination based on the totality of the circumstances. Id. at 344.

Although Badger points out that the district judge did not make specific findings on each of the Carr factors, that circumstance does not establish that the district judge abused his discretion by denying Badger's motions. By enumerating those factors we did not intend to require the district court to make a specific finding as to each of the seven factors every time a defendant requests to withdraw a guilty plea. The burden of establishing a fair and just reason for withdrawing a guilty plea remains at all times on the defendant. United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988). Badger did not attempt to invoke any of the Carr factors to support his Rule 32(d) motions. He cannot now argue that the district court abused its discretion by failing to consider arguments that he had the burden to raise. At sentencing, Badger claimed only that the government's failure to offer him a substantial deal in exchange for information justified his requests to withdraw his pleas. Unfulfilled expectations of a deal for a lighter sentence do not constitute a fair and just reason for allowing withdrawal of a guilty plea.

Additionally, the record indicates that the Carr factors do support the district court's ruling. Badger asserts that allowing withdrawal of his pleas would not prejudice the government, inconvenience the court, or waste judicial resources. Even if these factors weigh in Badger's favor, they do not tip the scales to the extent necessary to find an abuse of discretion. The remaining Carr factors all support the district court's rulings.

The district judge carefully and thoroughly explained to Badger the consequences of agreeing to plead guilty. Badger knowingly and voluntarily chose to enter the pleas. He was ably and effectively represented by the counsel of his choice throughout the proceedings. Even if he believed that he should not be convicted for his participation in this venture, he did not claim innocence as to the acts which support the conviction. Finally, he did not attempt to withdraw his pleas until the day of sentencing. Over six weeks had passed since he entered his guilty plea on the conspiracy charge, and nearly three weeks had passed since he pleaded guilty to the failure to appear charge. The district court was correct in denying Badger's motions to withdraw his pleas.

III. Minimal or Minor Participant

Badger contends that the district judge erred by refusing to characterize him as a minimal or minor participant in the conspiracy to distribute marihuana. Under the Sentencing Guidelines, a minimal or minor participant is entitled to a decrease in his criminal offense level. Section 3B1.2 provides a four level decrease for a minimal participant and a two level decrease for a minor participant in the criminal activity.

A trial judge's determination of whether a defendant played a mitigating role in an offense as a minimal or minor participant is a factual finding subject to review under the clearly erroneous standard. United States v. Garcia, 917 F.2d 1370, 1378 (5th Cir.1990); United States v. Thomas, 870 F.2d 174, 177 (5th Cir.1989). In making this finding, the district judge obviously is not bound to accept the defendant's own declarations about his level of participation in the crime. United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

Although they are not very precise, the Sentencing Guidelines point the way for a district judge making this factual finding. The commentary to Sec. 3B1.2 defines a minimal participant as one who is "plainly among the least culpable of those involved in the conduct of a group." The defendant's level of knowledge of the scope and structure of the criminal enterprise is mentioned as one factor to consider in making the factual finding. The commentary for the minor participant adjustment is at best a generalization: "a minor participant means any participant who is less culpable than most other participants but whose role could not be described as minimal."

We hold that the trial judge's finding was not clearly erroneous. The record shows that Badger was a person of substantial education who could be certain to...