U.S. v. Mays

• Decision Date: 27 January 2010
• Docket Number: No. 09-1767.,09-1767.
• Citation: 593 F.3d 603
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duane D. MAYS, Defendant-Appellant.

593 F.3d 603

UNITED STATES of America, Plaintiff-Appellee, v. Duane D. MAYS, Defendant-Appellant.

No. 09-1767.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2009.

Decided January 27, 2010.

Michelle L. Jacobs, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Thomas E. Phillip, Attorney (argued), Federal Defender Services, Green Bay, WI, for Defendant-Appellant.

Before MANION, SYKES, and TINDER, Circuit Judges.

MANION, Circuit Judge.

Duane Mays entered an unconditional guilty plea to possession of a firearm by a felon. Prior to sentencing, he moved to withdraw his plea, arguing that the possibility of a change in Fourth Amendment law in a case pending before the Supreme Court was a fair and just reason for withdrawal. The district court denied that motion and sentenced Mays to an above-Guidelines-range term of 30 months' imprisonment. Mays appeals the district court's denial of his motion to withdraw and the sentence it imposed. We affirm.

I.

On May 28, 2008, police in Langlade County, Wisconsin, stopped Duane Mays for speeding. The officer making the stop ran a record check and discovered there was an outstanding warrant for Mays's arrest based on an unpaid speeding citation. The officer placed Mays under arrest and searched him, finding $2500 in cash in his pockets. After securing Mays in the back seat of a patrol car, the arresting officer searched Mays's vehicle and found a loaded .380-caliber pistol under a jacket on the front passenger's seat. A drug-detection dog later alerted to Mays's vehicle and the cash he had been carrying, but no controlled substances were found.

Mays was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He entered an unconditional guilty plea on October 9, 2008, pursuant to a plea agreement with the government and following a thorough colloquy with the district court. In the plea agreement, Mays waived several rights, including "any claims he may have raised in any pretrial motion." Prior to sentencing, however, Mays filed a motion to withdraw his guilty plea based on the pending Supreme Court case of Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).¹ In that motion, he argued that the possibility a favorable outcome in Gant would render the search of his vehicle unlawful (and the gun thus subject to exclusion) constituted a "fair and just reason" for withdrawing his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B). The district court denied the motion, concluding that Mays's desire to take advantage of a potential change in the Supreme Court's search-incident-to-arrest precedent in Gant did not constitute a fair and just reason for withdrawing his plea.

At sentencing, the district court concluded that Mays possessed the .380-caliber pistol because he was involved in selling drugs. The court based that finding in part on the facts that Mays was carrying $2500 in cash, a drug-detection dog had alerted to his vehicle, and guns are tools of the drug trade commonly used for protection by dealers. The court also relied on several phone calls Mays had placed from jail. According to the presentence investigation report ("PSR"), Mays had been under investigation for dealing drugs in Wisconsin over a year before he was arrested. A confidential informant told law enforcement agents that Mays regularly traveled to Schaumburg, Illinois, to buy cocaine from a man named "Stan." The informant also said that two men named "Steve" and "Bruce" assisted Mays with the drug trafficking. During his detention, Mays placed phone calls to an unidentified man from Schaumburg, Illinois, and men named "Steve" and "Bruce," asking for bail money. In a conversation with the man from Schaumburg, Mays stated: "I got—they caught me with a gun. That's it. They got me with a gun. That's it." The district court understood that statement to communicate that Mays had been caught with only a gun, not drugs. The court believed Mays's phone calls corroborated the confidential informant's prior statements that Mays was dealing drugs. Based upon its finding that Mays possessed the gun to protect his drug trafficking activities, the district court sentenced him to 30 months' imprisonment, in excess of the 12-18 month advisory Guidelines range.

Mays appeals, challenging his sentence and the denial of his motion to withdraw his guilty plea.

II.

A. Motion to Withdraw the Guilty Plea

Mays first argues that the district court erred by denying his motion to withdraw his guilty plea. After a court has accepted a guilty plea, a defendant's right to withdraw the plea prior to sentencing is not absolute, United States v. Bowlin, 534 F.3d 654, 659 (7th Cir.2008); he may withdraw the plea only if he "can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B). When a proper Rule 11 colloquy has taken place, a guilty plea enjoys a presumption of verity and the "fair and just" Rule 11(d)(2)(B) escape hatch is narrow. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir.2003). A defendant's burden of showing the existence of a fair and just reason is heavy in such circumstances. United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). We review the denial of a defendant's motion to withdraw a guilty plea before sentencing for an abuse of discretion. United States v. Peleti, 576 F.3d 377, 382 (7th Cir.2009).

We have recognized several fair and just reasons for withdrawing a plea, including: the plea was not made voluntarily and knowingly, United States v. Weathington, 507 F.3d 1068, 1073 (7th Cir. 2007); actual innocence, United States v. Carroll, 412 F.3d 787, 792 (7th Cir.2005); and legal innocence, United States v. Rinaldi, 461 F.3d 922, 927 (7th Cir.2006). Mays characterizes his argument—the possibility that a change in Fourth Amendment law in Gant would allow him to successfully move for the exclusion of evidence obtained during the search of his vehicle—as a claim of legal innocence.²

There is some authority for the proposition that a post-guilty plea, pre-sentence change in Supreme Court precedent that bears on a defendant's legal innocence may constitute a fair and just reason for permitting the withdrawal of the plea. See, e.g., United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir.2004); United States v. Presley, 478 F.2d 163, 167-68 (5th Cir.1973). Here, however, there was no intervening change in Supreme Court precedent: Gant was not decided until after Mays was sentenced. The fact that the Supreme Court had granted the writ of certiorari and heard oral arguments in Gant was not indicative of a change in its Fourth Amendment search-incident-to-arrest precedent. At most, it signified that a change in the law was possible. Mays does not point to any authority that holds that the mere possibility of a change in Supreme Court precedent is a fair and just reason for withdrawal of a guilty plea. Hence, the district court did not abuse its discretion in concluding that the potential shift in the law posed by Gant was not a fair and just reason for withdrawing Mays's guilty plea and accordingly denying his motion to withdraw.³

B. Reliability of the Confidential Informant's Statements

Next, Mays claims that the confidential informant's allegations of his involvement in drug trafficking that were recounted in the PSR were unreliable and that the district court erred by relying on that information in determining his sentence. A defendant has a constitutional right to be sentenced on the basis of accurate information. United States v. Rollins, 544 F.3d 820, 838 (7th Cir.2008). The evidentiary standards at sentencing are relaxed, however, and a court may consider information that possesses "sufficient indicia of reliability to support its probable accuracy." Id. (quotation marks and citations omitted). Therefore, a court can rely on facts contained in a PSR if the PSR is founded on sufficiently reliable information. Id. The defendant bears the burden of showing a PSR is inaccurate or unreliable, but more than a bare assertion of inaccuracy is required. Id. The defendant must furnish some evidence that calls into question the reliability or correctness of the facts contained in the PSR. United States v. Willis, 300 F.3d 803, 807 (7th Cir.2002). If the defendant can produce such evidence, the burden shifts to the government to demonstrate the accuracy of the information. United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.2009).

At the sentencing hearing, Mays claimed the confidential informant's statements were unreliable because there were three outstanding warrants for the informant's arrest around the time he made the statements. In addition, court orders allegedly were in force prohibiting the informant from making contact with Mays and Mays's residence. (Mays learned during discovery that the informant was his son-in-law). Although Mays introduced no documentation in support of these claims, we will assume for the sake of argument that he presented sufficient evidence to call into question the reliability of the informant's statements and thereby shifted the burden of showing their accuracy to the government.

We review the district court's determination of the reliability of the confidential informant's hearsay statements for an abuse of discretion. United States v. Omole, 523 F.3d 691, 702 (7th Cir.2008). Reliability may be established by corroborating evidence, United States v. Martinez, 289 F.3d 1023, 1029 (7th Cir.2002), and there was evidence in the record corroborating the confidential informant's statements in the PSR. Over a year after the informant reported that Mays regularly bought cocaine from a man named "Stan" from Schaumburg and trafficked drugs with the assistance of men named "Steve" and "Bruce," Mays placed calls from jail seeking bail from a man in Schaumburg and men named "Steve" and "Bruce." In...