U.S. v. Guthrie, 94-4171
| Decision Date | 11 September 1995 |
| Docket Number | No. 94-4171,94-4171 |
| Citation | 64 F.3d 1510 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jon R. GUTHRIE, a/k/a Jay Roland, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Scott M. Matheson, Jr., United States Attorney, Stanley H. Olsen, Assistant United States Attorney, Office of United States Attorney, Salt Lake City, UT, for plaintiff-appellee.
Walter F. Bugden, Bugden & Morton, Salt Lake City, UT, for defendant-appellant.
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges. *
Jon R. Guthrie appeals the district court's order denying his motion to withdraw his guilty plea, as well as the district court's restitution order entered against him in the amount of $27,600. Although we affirm the district court's denial of Mr. Guthrie's motion to withdraw his guilty plea, for the reasons stated below we vacate the district court's restitution order and remand the case for resentencing.
In October of 1992, Mr. Guthrie was named in four counts of an indictment in the District of Utah, which charged him with, inter alia, providing prohibited kickbacks from the proceeds of a government contract in violation of 41 U.S.C. Sec. 53. Specifically, the indictment alleged that Mr. Guthrie had entered into a contract with Gregory Frazier to provide certain services in fulfillment of Mr. Frazier's contractual obligations with the United States Department of Labor, and then paid $10,000 of the $24,000 contract price to Mr. Frazier as a kickback.
In September of 1993, Mr. Guthrie's attorney began discussing the possibility of a plea agreement with the government. At a subsequent district court hearing, Mr. Guthrie testified that during these plea negotiations he was suffering from a large tumor in his sinus cavity, which was scheduled to be removed at a hospital in Pennsylvania. However, before having the tumor removed, Mr. Guthrie travelled to Utah, on the advice of his attorney, in order to negotiate a plea agreement. Mr. Guthrie also testified that at this time he was taking medication for clinical depression, but that he forgot to bring that medication with him to Utah.
Mr. Guthrie arrived in Utah on Friday, September 24, 1993. He discussed the possibility of entering a guilty plea with his attorney on Saturday and with the prosecutor on Sunday. During these discussions, Mr. Guthrie's attorney made it clear that the decision was ultimately up to Mr. Guthrie and "that he [wa]s not there to recommend but simply to present the offer and [Mr. Guthrie] ha[d] to decide what ... to do." Rec. vol. II, at 17.
On Monday, September 27, 1993, the district court held a hearing to consider a change of Mr. Guthrie's plea from not guilty to guilty. At the hearing, Mr. Guthrie answered all of the district court's questions without hesitation and appeared to be coherent and acting on his own volition. Mr. Guthrie stated that he was not under the influence of any medications, that he was acting voluntarily, that he had not been pressured or coerced into changing his plea, and that he was satisfied with his attorney. Additionally, the court explained the charges and possible penalties to him, as well as the various constitutional rights Mr. Guthrie would waive by entry of a guilty plea. The court also noted that the maximum term of imprisonment would be ten years. Following this inquiry, the district court accepted Mr. Guthrie's plea of guilty to one count of the indictment. The remaining counts of the indictment against Mr. Guthrie were dropped.
On January 24, 1994--almost four months later--Mr. Guthrie moved to withdraw his guilty plea. The district court held a hearing and received the testimony of Mr. Guthrie and of an attorney, Mr. Warlaumont, who spoke to Mr. Guthrie shortly after entry of the guilty plea. During Mr. Guthrie's testimony, he was asked whether his mental capacity during entry of the guilty plea was impaired by his health condition. Mr. Guthrie responded: Rec. vol. II, at 23. He also stated that he had not read the Statement by Defendant in Advance of Plea of Guilty, even though he had signed it and had previously told the court under oath that he had read the statement. Mr. Guthrie also testified at this hearing that he had understood the seriousness of the offense prior to entry of his plea, id. at 35-36; that he had "absolutely" understood the impact of not taking his antidepressants but failed to inform the court, id. at 40; and that he had understood that the decision of whether to enter the plea was his choice, id. at 42. Mr. Guthrie also told the court that "[i]t was certainly a voluntary plea." Id. at 38.
Mr. Warlaumont testified that Mr. Guthrie had come to speak to him just days after entry of his guilty plea to discuss whether he had made the right decision. Mr. Warlaumont stated that Mr. Guthrie had expressed concern about having pled guilty and had been specifically concerned that his trial counsel had not devoted adequate time to the case. Mr. Warlaumont could not recall Mr. Guthrie having expressed any concerns to him regarding his medical condition.
After consideration of this testimony, the district court expressed its satisfaction with the knowing and intelligent nature of Mr. Guthrie's guilty plea:
I observed this defendant and I was satisfied in every way that he was acting wholly, voluntarily and of his own free will and choice and intelligence and without hesitation and without reservation and there was nothing in his demeanor or in anything he said that made me think that there was any question about his decision to plead guilty.
If there was some kind of subjective, unstated reason as now is being suggested, it certainly wasn't apparent to the court and it isn't apparent from the transcript. I'm satisfied that he was acting voluntarily, under no pressure, that he understood the charges, the word kickback was used many times during the course of the transcript.
Id. at 71. The court also noted that Mr. Guthrie had not mentioned any medical concerns when speaking to Mr. Warlaumont about the plea just days later. The court concluded: "[T]here is no compelling reason that convinces the court that I should permit this defendant to withdraw his plea and the motion to withdraw is denied." Id. at 72.
The district court subsequently sentenced Mr. Guthrie to five years probation, including six months home confinement and 250 hours of community service as conditions of that probation, $27,600.00 in restitution, and a $50.00 special assessment. Mr. Guthrie now appeals the denial of his motion to withdraw his guilty plea, as well as the district court's order imposing restitution.
Mr. Guthrie first argues that the district court abused its discretion by denying his motion to withdraw his guilty plea. Fed.R.Crim.P. 32(e) reads: "If 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." Id. (formerly Fed.R.Crim.P. 32(d)). However, "One who enters a guilty plea has no right to withdraw it." Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978). Under Rule 32(e), the defendant has the burden of establishing a "fair and just" reason for allowing withdrawal of the plea, and " '[i]t is within the sound discretion of the [district] court to determine what circumstances justify granting such a motion.' " United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (quoting United States v. Wade, 940 F.2d 1375, 1377 (10th Cir.1991)), cert. denied, --- U.S. ----, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994) (). We therefore review the district court's denial of Mr. Guthrie's motion for an abuse of discretion and we will not reverse absent a showing that the district court acted unjustly or unfairly. See id. at 1572-73.
This court has adopted seven factors to consider when determining whether the defendant has established a fair and just reason for allowing withdrawal of a guilty plea: (1) assertion of innocence by the defendant; (2) prejudice to the government if the motion is granted; (3) whether the defendant has delayed filing the motion to withdraw his plea; (4) inconvenience to the court if the motion is granted; (5) quality of defendant's assistance of counsel during his plea; (6) whether the plea was knowing and voluntary; and (7) waste of judicial resources. Gordon, 4 F.3d at 1572. Mr. Guthrie only raises three of these factors on appeal: he asserts his innocence, arguing that he did not understand the meaning of the word "kickback" when he entered his guilty plea; he argues that although he waited four months to file a formal motion to withdraw his plea, he actually began taking steps toward that end the day after he entered his plea; and he urges that any prejudice to the government is outweighed by his interest in having a jury trial.
We are not persuaded that Mr. Guthrie has met his burden of showing that the district court acted unjustly or unfairly in denying his motion to withdraw his guilty plea. Initially we note that the district court described the factual basis for the plea in detail and used the word "kickback" throughout the proceeding. Mr. Guthrie also admitted that he had been aware of the serious nature of the offense, and that his plea had in fact been voluntary. Mr. Guthrie also waited almost four months before filing his motion to withdraw his plea, and we do not believe that his intention to do so earlier is relevant--a defendant must still follow proper procedures. Given these factors, we can not agree that the prejudice to the government is outweighed by Mr. Guthrie's purported right to withdraw his plea.
After thoroughly reviewing the record in this case, it is clear that the only argument Mr. Guthrie...
To continue reading
Request your trial
-
U.S. v. Anderson
...enumerated in the VWPA or the MVRA (such as the Title 26 offenses to which the defendant pled guilty in this case). See United States v. Guthrie, 64 F.3d at 1514; United States v. Soderling, 970 F.2d at 534. Under Section 3663(a)(3), she or he may agree to a specific dollar amount of restit......
-
U.S. v. Hampshire, 96-3007
...Hampshire's ex post facto challenge to the restitution order presents a question of law that we review de novo. United States v. Guthrie, 64 F.3d 1510, 1514 (10th Cir.1995). The CSRA provides that "the court shall order restitution under section 3663 in an amount equal to the past due suppo......
-
U.S. v. Anderson
...by the defendant's offense." United States v. Messner, 107 F.3d 1448, 1455 (10th Cir.1997) (emphasis added); United States v. Guthrie, 64 F.3d 1510, 1516 (10th Cir.1995). The government has the burden to prove the amount of loss. Messner, 107 F.3d at 1455 (citing 18 U.S.C. § 3664(d) (1985) ......
-
U.S. v. Spring
...of the district court's order of restitution, and we review for clear error any underlying factual findings. United States v. Guthrie, 64 F.3d 1510, 1514 (10th Cir.1995). The amount of restitution ordered pursuant to a legal restitution order we review for an abuse of discretion, id., and "......