U.S. v. Warden
| Decision Date | 29 November 1993 |
| Citation | 69 F.3d 549 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. This cause is therefore ordered submitted without oral argument.
Plaintiff/appellant David Warden pled guilty to one count of attempting to manufacture and aiding and abetting the attempted manufacture of 1000 grams and more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. Sec. 2. At his sentencing, Mr. Warden moved to withdraw from the plea agreement and enter a plea of not guilty. The court denied the motion and sentenced him to a ten-year prison term.
Mr. Warden then filed a notice of appeal, followed by a motion for a limited remand to the district court for consideration of a reduction in his sentence. We granted the motion for a limited remand, and the district court ultimately denied the motion for a reduction in sentence. Another notice of appeal, which was filed by and consolidated with Mr. Warden's original appeal, is now before us.
In August 1992, Mr. Warden received a controlled delivery of hydriodic acid and red phosphorus. Federal agents later discovered an apparent methamphetamine laboratory at a location which was under Mr. Warden's control. At both the location of the delivery and the location of the laboratory, federal agents discovered glassware, laboratory equipment, and precursor chemicals, including 2,000 grams of ephedrine, all of which led agents to believe Mr. Warden operated a functioning methamphetamine laboratory which was capable of manufacturing over 1,500 grams of methamphetamine. The government did not test the purity of the ephedrine seized, nor did it determine whether it would yield L-methamphetamine or D-methamphetamine.
In November 1992, the government filed a second superseding indictment charging Mr. Warden with conspiracy to manufacture, unlawful attempt to manufacture, and manufacturing 1,000 grams or more of a mixture or substance containing a detectable amount of methamphetamine. In January 1993, the court granted Mr. Warden's counsel's motion to withdraw and permitted the substitution of Ms. Martha Horowitz as new counsel.
In April 1993, Mr. Warden entered into a plea agreement with the government, pursuant to which he pled guilty to a single count of unlawful attempt to manufacture and aiding and abetting the manufacture of 1,000 grams or more of a mixture or substance containing a detectable amount of methamphetamine. It was a Fed.R.Crim.P. 11(e)(1)(C) agreement for which there was a statutory minimum mandatory sentence of ten years. See 21 U.S.C. Sec. 841(b)(1)(A) and Sentencing Guideline Sec. 2D1.1. The court explained to Mr. Warden that, because it was a Rule 11(e)(1)(C) agreement, he could withdraw his plea and proceed to trial if the court attempted to sentence him to a greater term. Following his entry into the plea agreement, but before sentencing, Ms. Horowitz filed a motion to withdraw and Mr. Warden requested that new counsel be appointed. The court denied Ms. Horowitz's motion to withdraw, but did appoint an additional attorney, Mr. Irving Andrews, to assist Ms. Horowitz.
At his sentencing hearing, Mr. Warden moved to withdraw his guilty plea and enter a plea of not guilty. The court denied the motion, and sentenced Mr. Warden to the ten-year term, the mandatory minimum, as agreed to in the plea agreement.
Mr. Warden filed a notice of appeal, followed by a motion for a limited remand to the district court, which this court granted. He then filed a motion in the district court to reduce his sentence pursuant to 18 U.S.C. Sec. 3582(c)(2), on the ground that a newly effective retroactive change in Sentencing Guideline Sec. 2D1.1 provided that a mixture does not include materials that must be separated from the controlled substance before the controlled substance can be used. The district court denied Mr. Warden's motion to reduce his sentence, concluding that the retroactive amendment to the Sentencing Guidelines did not apply to Mr. Warden's case. This appeal followed.
Mr. Warden argues that: (1) the court erred in not allowing him to withdraw his guilty plea because his plea was not knowing and voluntary due to ineffective assistance of counsel; (2) the court violated Fed.R.Crim.P. 32(c)(3)(D) by failing to make findings regarding Mr. Warden's challenges to claimed inaccuracies in the presentence report; (3) the court erred in not reducing his sentence; and (4) the court abused its discretion in not granting Mr. Warden's request for a hearing on the applicability of 18 U.S.C. Sec. 3553.
Under Fed.R.Crim.P. 32(e), "[i]f a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." However, "[o]ne who enters a guilty plea has no right to withdraw it." Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978). Rule 32(e) places the burden on the defendant to establish a "fair and just" reason for being permitted to withdraw his guilty 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. Guthrie, No. 94-4171, 1995 WL 536323 at * 3 (10th Cir. Sept. 11, 1995) (quoting United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), cert. denied, 114 S.Ct. 1236 (1994)). We therefore review for an abuse of discretion the district court's denial of Mr. Warden's motion to withdraw his guilty plea, "and we will not reverse absent a showing that the district court acted unjustly or unfairly." Id.; see also United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990), cert. denied, 498 U.S. 1122 (1991).
We utilize seven factors in determining whether a defendant has established a "fair and just" reason for being permitted to withdraw a guilty plea: (1) the defendant's assertion of innocence; (2) prejudice to the government if the withdrawal is permitted; (3) any delay by the defendant in filing the motion to withdraw; (4) inconvenience to the court if the withdrawal is permitted; (5) the quality of the defendant's assistance of counsel during the plea proceedings; (6) whether the plea was knowing and voluntary; and (7) any waste of judicial resources. Guthrie, 1995 WL 536323 at * 3; see also Gordon, 4 F.3d at 1572. Mr. Warden asserts that, in his case, "the overwhelming consideration ... is that he pled guilty without being fully apprised of the consequences of his guilty plea by his counsel...." Appellant's Br. at 15. Thus, he argues that ineffective assistance of counsel caused his guilty plea to be involuntary and unknowing.
The Supreme Court in Hill v. Lockhart, 474 U.S. 52 (1985) set out the standard for proving that ineffective assistance of counsel resulted in an involuntary plea: "Where ... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' " Id. at 56 (quoting Mann v. Richardson, 397 U.S. 759, 771 (1970)). 1 Mr. Warden argues his counsel was ineffective in six respects: (1) she failed to provide him "in a timely manner" with a copy of Richards v. United States, 796 F.Supp. 1456 (D.Utah 1992), vacated, 5 F.3d 1369 (10th Cir.1993) which he argues was relevant to his situation; (2) neither Ms. Horowitz nor Mr. Andrews discussed with Mr. Warden proposed amendments to the Sentencing Guidelines which he argues were also relevant to his situation; (3) his counsel failed to advise him of the consequences of the government's failure to test the seized ephedrine to determine whether it would yield D-methamphetamine or L-methamphetamine; (4) his counsel failed to discuss with him any possible effect the government's controlled delivery of chemicals might have on his sentence; (5) Ms. Horowitz failed "either to go forward with a motions hearing or advise her client before he entered his guilty plea that she would not pursue a pre-sentencing hearing on relevant conduct issues," Appellant's Br. at 22; and (6) Mr. Warden lacked assistance of counsel entirely during his attempt to withdraw his guilty plea. We hold that none of these establish ineffective assistance of counsel rendering Mr. Warden's guilty plea involuntary.
We agree with the government that Mr. Warden's claims with respect to the Richards case do not establish ineffectiveness for several reasons: the case was vacated by this court, it dealt with a different factual situation than this case, and the evidence showed that it was provided to Mr. Warden prior to his entry into the plea agreement. Similarly, his argument that his attorneys were ineffective in failing to discuss proposed amendments to the Sentencing Guidelines does not demonstrate ineffectiveness when the amendments, although they were ultimately made retroactively applicable, 2 have no bearing on Mr. Warden's case. 3
It is likewise...
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