U.S. v. Cruz

• Decision Date: 06 October 2011
• Docket Number: No. 10–2926.,10–2926.
• Citation: 643 F.3d 639
• Parties: UNITED STATES of America, Appellee,v.Joe CRUZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

643 F.3d 639

UNITED STATES of America, Appellee,

v.Joe CRUZ, Appellant.

No. 10–2926.

United States Court of Appeals, Eighth Circuit.

Submitted: March 18, 2011.Filed: July 7, 2011.Rehearing and Rehearing En Banc Denied Oct. 6, 2011.

George W. Appleby, Carney & Appleby, P.L.C., Des Moines, IA, argued, for appellant.John S. Courter, Asst. U.S. Atty., Des Moines, IA, argued (Nicholas A. Klinefeldt, U.S. Atty., Kelly E. Mahoney, Shannon L. Olson, Asst. U.S. Attys., on the brief), for appellee.Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.COLLOTON, Circuit Judge.

Joe Cruz pled guilty to conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. On March 23, 2010, the district court ¹ adopted the report and recommendation of a magistrate judge ² and accepted his plea. On April 13, 2010, Cruz moved to withdraw his plea. The district court denied the motion and sentenced Cruz to 300 months' imprisonment. Cruz appeals, and we affirm.

I.

In October 2009, the police effected a traffic stop and discovered approximately 2.5 pounds of methamphetamine in a vehicle driven by Cruz and occupied by Uriel Mora Gonzalez. A grand jury indicted Cruz and Gonzalez on drug trafficking charges, and the defendants moved to suppress the evidence obtained from the vehicle. The district court denied the motions to suppress and a motion to sever filed by Gonzalez.

On February 25, 2010, Cruz entered a plea agreement in which he pled guilty to a conspiracy charge in exchange for the government's agreement to dismiss a second charge. The government also agreed not to seek an enhanced sentence based on Cruz's prior felony drug convictions. See 21 U.S.C. §§ 841(b)(1)(A), 851.

On February 26, 2010, a magistrate judge held a change of plea hearing. At the hearing, Cruz stated that he had conferred with his attorney, had read the plea agreement and everything else his attorney provided him, and was satisfied with his attorney's services. Cruz testified that no one had made any threats or promises to him regarding the plea agreement or tried to coerce him into pleading guilty. After Cruz informed the court that he had taken cold medication within 24 hours of the hearing, the magistrate judge questioned him on the effect of the medication. Cruz responded that the medicine made him feel a little dopey, but that he was able to follow what was happening, understood the significance of the proceeding, and could function fine. The magistrate judge also advised Cruz of the possible sentencing consequences, including that he did not have the right to withdraw his plea if he was dissatisfied with his sentence. The magistrate judge found that Cruz entered the plea knowingly, voluntarily, and intelligently, and without any force, threats, or promises. Cruz lodged no objection to the report and recommendation; the district court adopted it, and accepted Cruz's guilty plea on March 23, 2010.

On April 13, 2010, the day after the probation office distributed its first draft of Cruz's presentence report, Cruz moved to withdraw his guilty plea and replace his attorney. The district court appointed new counsel and held a hearing on the motion to withdraw the plea. At the hearing, Cruz asserted his innocence. He alleged that his former counsel was ineffective, that he was pressured into pleading guilty, and that he was confused at the change of plea hearing. The district court denied the motion to withdraw, and sentenced Cruz to 300 months' imprisonment.

II.

This court reviews the denial of a motion to withdraw a plea for an abuse of discretion. United States v. Alvarado, 615 F.3d 916, 920 (8th Cir.2010). A defendant may withdraw a guilty plea that has been accepted by a court, before sentence is imposed, if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The defendant bears the burden to establish fair and just grounds for withdrawal. United States v. Rollins, 552 F.3d 739, 741 (8th Cir.2009). Even if the defendant meets this burden, the court must consider other factors before granting the motion, namely, “whether the defendant asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the government will be prejudiced if the court grants the motion.” United States v. Ramirez–Hernandez, 449 F.3d 824, 826 (8th Cir.2006) (internal quotations omitted). We conclude that Cruz's allegations of ineffective assistance of counsel, confusion, pressure, and innocence do not establish a fair and just reason to withdraw his plea.

“Defense counsel's performance can serve as the requisite ‘fair and just reason’ for withdrawal only if [the defendant] demonstrates both that his attorney's performance was deficient and that he was prejudiced by it.” United States v. McMullen, 86 F.3d 135, 137 (8th Cir.1996). To establish deficient performance, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, the defendant must prove “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” McMullen, 86 F.3d at 137 (internal quotations omitted). The district court did not abuse its discretion in concluding that Cruz failed to satisfy these requirements.

Cruz alleges that his attorney's performance was deficient due to his failure to bring up “lies” told by Drug Enforcement Administration agents at the suppression...