U.S. v. Graves, 96-3170
| Decision Date | 11 February 1997 |
| Docket Number | No. 96-3170,96-3170 |
| Parties | 97 CJ C.A.R. 221 UNITED STATES of America, Plaintiff-Appellee, v. Bradley E. GRAVES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Steven K. Gradert, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, KS, for Defendant-Appellant.
Debra L. Barnett, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with her on the brief), Wichita, KS, for Plaintiff-Appellee.
Before PORFILIO, HOLLOWAY, and ANDERSON, Circuit Judges.
Defendant Bradley Graves appeals the district court's refusal to allow him to withdraw his guilty plea on two firearms-related charges. For the reasons stated below, we affirm.
In January 1996, Mr. Graves pled guilty to one count of possession of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g), and one count of using or carrying a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c). In exchange for Mr. Graves' guilty plea on these two counts, the government dismissed four other firearm and drug-related charges. In March 1996, Mr. Graves filed a motion to withdraw his plea. The district court denied the motion based on its substantial compliance with Rule 11 and Mr. Graves' awareness of the charges to which he pled guilty. The court then sentenced Mr. Graves to 131 months in prison.
Although a defendant's motion to withdraw a plea before sentencing should be "freely allowed and treated with liberality," a trial court's decision on this issue is nevertheless discretionary. Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978). We therefore review the district court's denial of Mr. Graves' motion for abuse of discretion and will not reverse absent a showing that the court acted "unjustly or unfairly." Id. We consider the district court's finding of a factual basis for Mr. Graves' guilty plea under the "clearly erroneous" standard of review. United States v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir.1996).
Rule 32(d) of the Federal Rules of Criminal Procedure provides that a district court may allow a defendant to withdraw his or her guilty plea before sentencing "upon a showing ... of any fair and just reason." Fed.R.Crim.P. 32(d). The burden of demonstrating a fair and just reason rests with the defendant, based on the following considerations: (1) defendant's assertion of innocence; (2) resulting prejudice to the government; (3) defendant's delay in filing the withdrawal motion; (4) inconvenience to the court; (5) defendant's assistance of counsel; (6) knowledge and voluntariness of the plea; and (7) resulting waste of judicial resources. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993). On appeal, Mr. Graves offers three "fair and just" reasons why the district court should have allowed him to withdraw his plea. First, he denies engaging in any drug trafficking crime and therefore claims to be innocent of the § 924(c) charge. Second, he argues that his plea regarding the § 924(c) charge lacked a factual basis. Finally, Mr. Graves contends that his plea was not intelligently or voluntarily made because he was not presented with the final plea agreement until the night before trial, leaving him little time to consider his decision. We consider each argument in turn.
To sustain a conviction under 18 U.S.C. § 924(c) for using or carrying a firearm during and in relation to a drug trafficking crime, the government must prove that the defendant committed the underlying drug count, though a separate conviction on that count is not necessary. United States v. Hill, 971 F.2d 1461, 1467 (10th Cir.1992). Thus, if Mr. Graves did not in fact engage in the drug trafficking crime alleged in the government's indictment--possession with intent to distribute crack cocaine--then he is factually innocent of the § 924(c) charge and presents an arguably fair and just reason to withdraw his plea. Given the facts contained in the presentence report and Mr. Graves' oral and written representations to the district court at his Rule 11 hearing, however, we are not concerned in this instance that an innocent defendant mistakenly pled guilty to a crime he did not commit.
In its presentence report, the U.S. Probation Office noted the following with regard to the charges to which Mr. Graves pled guilty:
On April 22, 1995, a [Wichita Police Department] officer was conducting surveillance from the top of E & H at 2225 E. 9th Street, Wichita, Kansas. The officer observed several men standing under the overhead light exchanging crack cocaine. At one point, Bradley Graves approached a man standing under the light. The man said to Graves, "Do you got any?" Graves responded "No, I don't have anymore, but hold on." Graves then went across the street to retrieve something from a car. He returned to where the first man was standing. They both then went into E & H.
Approximately two minutes later, Graves and a man exited E & H. They were eventually approached by a third man, later identified as Otis Butler. Mr. Graves said to Butler, Butler responded, "I just got back." Butler then showed Graves four to five crack rocks in his hand. He then put the crack rocks in his mouth. (Note: The officer could actually hear these conversations and see the crack rocks from his location.) Officers positioned nearby were informed that the men were leaving the area and that they had crack cocaine in their possession. In addition, the officer had noted that Graves had an abnormal bulge in his shorts which he believed to be a gun.
Officers identified themselves and attempted to apprehend the three men. The men took off running in different directions. Butler and Graves were apprehended. During the chase, Butler threw the crack rocks (.80 grams) and Graves dropped a loaded 9mm Firestar Plus handgun through his shorts. These facts form the basis of Counts 1 and 2 of the Second Superseding Indictment.
Because Mr. Graves did not object to the facts contained in the presentence report, they are deemed admitted. United States v. Deninno, 29 F.3d 572, 580 (10th Cir.1994). As a result, we can only conclude that Mr. Graves' claim of innocence is inconsistent with the observations of the Wichita police officers who ultimately...
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