United States v. Andolini

• Decision Date: 01 February 2013
• Docket Number: No. 12–2124.,12–2124.
• Citation: 705 F.3d 335
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Antonio Antwon ANDOLINI, formerly known as Edward Sistrunk, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

705 F.3d 335

UNITED STATES of America, Plaintiff–Appellee

v.Antonio Antwon ANDOLINI, formerly known as Edward Sistrunk, Defendant–Appellant.

No. 12–2124.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 12, 2012.

Filed: Feb. 1, 2013.

Julius Anthony Nolen, Minneapolis, MN, for appellant.

Lisa D. Kirkpatrick, AUSA, St. Paul, MN, for appellee.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

PER CURIAM.

Antonio Antwon Andolini pled guilty to one count of mail fraud, in violation of 18 U.S.C. § 1341, and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A. Before sentencing, he moved to withdraw his plea. The district court ¹ denied the motion, sentencing him to 54 months' imprisonment. Andolini appeals the denial of his motion to withdraw his plea.

Andolini used stolen identities to obtain housing and public assistance benefits, credit cards, and cash. At a change-of-plea hearing, he entered a plea agreement including stipulations to specific offense characteristics. But before sentencing, he requested that counsel move to withdraw the plea. Andolini explained he would provide grounds for withdrawal at a hearing on the motion. The district court addressed the motion at the sentencing hearing, where Andolini accused his counsel of deceiving and misleading him and contested the factual basis for agreed-upon sentence enhancements.

A defendant may withdraw a guilty plea after the court accepts it but before sentencing if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). “There is no right to withdraw; the plea of guilty is a solemn act not to be disregarded because of belated misgivings about its wisdom.” United States v. Green, 521 F.3d 929, 931 (8th Cir.2008) (internal quotation marks omitted). “We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion.” United States v. Osei, 679 F.3d 742, 746 (8th Cir.2012).

Andolini claims that he “set forth valid reasons for withdrawal of the plea, including dissatisfaction with communication by his counsel that led to a misunderstanding of the terms of his plea agreement.”

“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. Buck, 661 F.3d 364, 370 (8th Cir.2011). Establishing deficient performance requires showing 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). Establishing prejudice requires showing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Andolini expressed dissatisfaction with counsel at sentencing, but dissatisfaction alone does not establish deficient performance or prejudice. Andolini does not argue that counsel's performance fell below an objective standard of reasonableness or that but for unprofessional errors by counsel, the result of the proceeding would likely have been different. Further, at the change-of-plea hearing, Andolini actually expressed satisfaction with counsel, explaining that while he wished counsel could have done a little more, he had done “a fair job,” that Andolini was “happy with what is going on here today” and was “comfortable moving forward.”

Insofar as Andolini faults his counsel for advising him to agree to the enhancements he now contests, his argument fails because the enhancements have a clear factual basis. He specifically asserts that though the agreement stipulated an enhancement for ten or more victims, its factual basis referenced only eight victims. The agreement in fact explicitly states that there were “at least 17 different victims,” and specifically lists 8 individuals and 3 institutions. Andolini confirmed its accuracy at the change-of-plea hearing, after declining the court's offer to go through the victims' names individually.²

Andolini also contends that the agreement's stipulation of an enhancement for relocation-of-the-scheme was not supported by the evidence. He claims that he moved from Minnesota to South Dakota for a job, not to evade law enforcement.

The enhancement was pursuant to U.S.S.G. § 2B1.1(b)(10), which states:

If (A) the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials; (B) a substantial part of a fraudulent scheme was committed from outside the United States; or (C) the offense otherwise involved sophisticated means, increase by 2 levels.

At sentencing, the district court stated that it was applying the two-level increase “because the offense involved sophisticated means,” and then gave examples. Even if Andolini's relocation was not to evade law enforcement, his use of sophisticated means—which he does not contest and which was alternatively referenced in the plea...