U.S.A v. Black

Decision Date27 January 2000
Docket NumberNo. 98-8056,98-8056
Citation201 F.3d 1296
Parties(10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSS FRANK BLACK, Defendant-Appellant
CourtU.S. Court of Appeals — Tenth Circuit

Michael G. Katz, Federal Public Defender; James P. Moran, Assistant Public Defender, Denver, Colorado, for the Defendant-Appellant.

David D. Freudenthal, United States Attorney, L. Robert Murray, Assistant United States Attorney, for the Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, and BALDOCK andHENRY, Circuit Judges.

HENRY, Circuit Judge.

Ross Frank Black appeals the district court's denial of his motion to withdraw his guilty plea for possession of unregistered firearms (a violation of 26 U.S.C. 5841, 5861(d), and 5871). Mr. Black also argues that, even if the district court did not err in denying his motion to withdraw the plea, it erred in determining his sentence. We first conclude the district court did not abuse its discretion in denying Mr. Black's motion to withdraw his plea. We further conclude that, in light of the provisions of the plea agreement, Mr. Black has waived his right to challenge his sentence on the grounds set forth in his appellate brief.1

I. BACKGROUND

On November 20, 1997, a grand jury charged Mr. Black with five federal firearms offenses. Before arraignment, Mr. Black filed a motion to excuse appointed counsel and proceed pro se. At the arraignment hearing, the district court allowed Mr. Black's counsel to withdraw and then appointed stand-by counsel. Mr. Black then entered a plea of not guilty to all five counts.

The district court subsequently conducted a hearing regarding Mr. Black's representation. It granted Mr. Black's motion to represent himself with stand-by counsel in further proceedings in the case.

On April 15, 1998, Mr. Black entered into a plea agreement with the government. See Rec. vol. I, doc. 125. Under the agreement, Mr. Black agreed to plead guilty to count three of the indictment (which alleged violations of 26 U.S.C. 5841, 5861(d) and 5871). He also agreed to waive his right to appeal his sentence. See id. at 7. The agreement stated that "[t]he defendant agrees to waive his right to appeal the sentence he receives as a result of this Plea Agreement," id., and added that "if the United States appeals the Defendant's sentence pursuant to 18 U.S.C. 3742(B), the Defendant is released from his waiver." Id.

The government agreed to dismiss the remaining counts of the indictment and to recommend that Mr. Black receive a three-level downward adjustment in his offense level for acceptance of responsibility. It also agreed that if it appealed the district court's sentencing decision, Mr. Black would be released from the waiver of his right to appeal.

At the change-of-plea hearing, the prosecutor summarized the provisions of the plea agreement. He referred to Mr. Black's waiver of his right to appeal his sentence. See Rec. vol. VI at 3-4 ("The other highlight that I admit for the Court in this plea agreement is that the defendant has agreed to waive his right to appeal the sentence he receives as a result of his plea agreement. The defendant is released from that agreement only if the United States were to appeal that sentence.").

The district court then questioned Mr. Black about the terms of the agreement. In response to the court's questions, Mr. Black acknowledged that he had signed the agreement, that he had done so voluntarily, that the prosecutor had accurately stated the terms of the agreement, and that there were no terms of the agreement other than those set forth in the written document. See id. at 4-7. Mr. Black admitted the factual allegations set forth in count three of the indictment and pleaded guilty to violating 26 U.S.C. 5841, 5861(d) and 5871. See id. at 8.

Prior to sentencing, Mr. Black filed a pro se motion to withdraw his guilty plea. See Rec. vol. I, doc. 135. He argued that he had pleaded guilty because he had been promised medical treatment. He added that the prosecutor had told him that he would be allowed to withdraw his guilty plea and that he would be sentenced for the charge to which he had entered his plea. According to Mr. Black, the presentence report improperly relied on crimes that he had not committed.

At the sentencing hearing, after considering testimony from a codefendant who had agreed to cooperate with the government, the district court denied Mr. Black's motion to withdraw his plea. See Rec. vol. I, doc. 137. The court relied on several of the factors identified by this circuit as relevant to the consideration of motions to withdraw guilty pleas. See United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). It concluded that even though Mr. Black had asserted his innocence, the testimony of his codefendant made it doubtful that he would be found innocent. The court also concluded that the government would be prejudiced if the motion were granted, that Mr. Black had received effective assistance from his stand-by counsel at the change of plea proceedings, that the guilty plea was knowing and voluntary, and that allowing the withdrawal of the plea would be a waste of judicial resources. See Rec. vol. VII, at 71-74.

The district court then overruled Mr. Black's objections to the presentence report and imposed a sentence of fifty-six months imprisonment, followed by a three-year term of supervised release. Id. at 74, 77.

At the conclusion of the sentencing hearing, the district court discussed the waiver- of-appeal provision of the plea agreement:

The defendant is further advised that the terms of your plea agreement include a waiver of your right to appeal the sentence, but in view of my denial of your right to withdraw your guilty plea, I am not going to-- I am going to strike that provision of the plea agreement so that you may appeal. I welcome you to do it because I don't have any doubt in my mind but what my action in not allowing your withdrawal will be upheld.

Id. at 79-80.

II. DISCUSSION

In this appeal, Mr. Black has filed a pro se brief challenging the denial of his motion to withdraw his guilty plea. Represented by counsel, Mr. Black also seeks to appeal his sentence. He challenges the district court's imposition of a four-level enhancement under USSG 2K2.1(b)(5) for the use of a firearm in connection with another felony and the district court's use of a Colorado misdemeanor offense in determining his criminal history.2

In response, the government argues that the district court properly denied Mr. Black's motion to withdraw his plea. It further argues that the waiver of the right to appeal set forth in Mr. Black's plea agreement precludes his challenges to his sentence. Because the validity of the waiver-of-appeal provision depends upon the validity of the plea agreement as a whole, we will first consider the arguments raised by Mr. Black in his pro se brief regarding the district court's refusal to allow him to withdraw his plea.

A. Denial of Motion to Withdraw Guilty Plea.

In his pro se supplemental brief, Mr. Black argues that the district court erred in denying his motion to withdraw his guilty plea. As in the district court proceedings, he contends that his plea was not knowing and voluntary because he was suffering from a painful toothache at the time of the change-of-plea proceedings. According to Mr. Black, the Assistant United States Attorney told him that if he agreed to plead guilty, the court would order dental care to be provided to him. He contends that the Assistant United States Attorney also told him that the district judge would allow him to withdraw his plea. Mr. Black notes that he had previously filed a motion requesting dental care and that the motion had been denied. However, he adds, the district court granted his second motion for dental care at the conclusion of the hearing at which he entered his guilty plea. He suggests that the granting of the motion supports his contention that the prosecutor improperly offered him dental care as an inducement for the guilty plea.

Under Fed. R. Crim. P. 32(e), "[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." It is the defendant's burden to establish a "fair and just reason" for the withdrawal of the plea. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). In Gordon, we set forth seven factors that courts should consider in deciding whether to allow a defendant to withdraw a guilty plea: (1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant's assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion would cause a waste of judicial resources. See Gordon, 4 F.3d at 1572. Although we engage in de novo review of the question of whether the plea was knowing and voluntary, see United States v. Libretti, 38 F.3d 523, 529 (10th Cir. 1994), we review the district court's denial of the motion to withdraw the guilty plea for an abuse of discretion, considering the seven factors outlined in Gordon. See United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996).

We agree with the district court that Mr. Black's guilty plea was knowing and voluntary. Although there appears to be no dispute that Mr. Black had a toothache when he pleaded guilty, Mr. Black has presented no evidence (other than his own assertions in his motion to withdraw his plea) that the toothache was so severe that it interfered with his ability to consent to the plea or that, but for the prosecutor's promise that he would receive dental treatment, ...

To continue reading

Request your trial
75 cases
  • U.S. v. Hahn
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 4, 2004
    ...waivers of appellate rights pursuant to principles of contract law tempered by public policy concerns. See, e.g., United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000) ("[A]greements waiving the right to appeal, like other contracts, are [evaluated] subject to certain public policy co......
  • Cloud v. State
    • United States
    • Wyoming Supreme Court
    • February 9, 2012
    ...would waste judicial resources. 3 Wright, Federal Practice and Procedure: Criminal 2d § 538 (Supp. 2001) ; United States v. Black, 201 F.3d 1296, 1299–1300 (10th Cir.2000). Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, ¶ 7 (Wyo.2001).Furthermore, "[t]he findings of fact that led to denial of......
  • United States v. Leal
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 5, 2019
    ..., 495 F.3d 621, 623–24 (9th Cir. 2007) ; United States v. Andis , 333 F.3d 886, 891–92 (8th Cir. 2003) (en banc); United States v. Black , 201 F.3d 1296, 1301 (10th Cir. 2000) ; Ready , 82 F.3d at 558–60 ; United States v. Marin , 961 F.2d 493, 496 (4th Cir. 1992). This broad circuit agreem......
  • Van Haele v. State
    • United States
    • Wyoming Supreme Court
    • May 25, 2004
    ...waste judicial resources. 3 Wright, King & Klein, Federal Practice and Procedure: Criminal 2d § 538 (Supp.2001); United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000). Doles v. State, 2002 WY 146, ¶ 11, 55 P.3d 29, ¶ 11 (Wyo.2002) (quoting Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT