United States v. Graf

• Decision Date: 27 June 2016
• Docket Number: No. 15-2260,15-2260
• Citation: 827 F.3d 581
• Parties: United States of America, Plaintiff–Appellee, v. Dante Graf, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

827 F.3d 581

United States of America, Plaintiff–Appellee
v.
Dante Graf, Defendant–Appellant.

No. 15-2260

United States Court of Appeals, Seventh Circuit.

Argued December 9, 2015
Decided June 27, 2016

Benjamin W. Proctor, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Christopher D. Donovan, Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for Defendant–Appellant.

Before Easterbrook and Hamilton, Circuit Judges, and Pallmeyer, District Judge.^*

Hamilton, Circuit Judge.

Secret Service agents observed Dante Graf twice sell counterfeit U.S. currency to an informant. Under a plea agreement, Graf pled guilty to one charge of dealing in counterfeit currency in violation of 18 U.S.C. § 473. The district court accepted Graf's plea agreement following a thorough colloquy under Federal Rule of Criminal Procedure 11. Graf later failed to appear for a bond revocation hearing and managed to avoid law enforcement for several months. After his eventual discovery and re-arrest, Graf's newly-assigned lawyer told him about the possibility of filing a motion to compel the government to disclose the identity of the confidential informant. Graf moved to withdraw his guilty plea so he could file such a motion. The district court denied the motion and then sentenced Graf to 63 months in prison.

The only issue on appeal is whether the district court abused its discretion in finding that Graf had not shown a “fair and just reason” for withdrawing his plea within the meaning of Federal Rule of Criminal Procedure 11(d)(2)(B). E.g.,

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United States v. Redmond , 667 F.3d 863, 870 (7th Cir. 2012) (abuse of discretion standard). It did not, so we affirm.

Graf was indicted in April 2013 and arraigned on June 29, 2013. Three months later, he and his lawyer and the prosecution signed and filed a written plea agreement in which Graf agreed to plead guilty to one charge under § 473 and the government agreed to dismiss a second charge. The agreement did not impose any limits on the court's sentence of Graf.

At a change of plea hearing on September 26, 2013, Graf was placed under oath and the district court undertook the required colloquy with him. The colloquy established that Graf was competent to decide how to plead, was pleading voluntarily, and was aware of the rights he would waive by pleading guilty. Graf also told the judge that he was happy with the way his lawyer had handled the case. The judge also reviewed the maximum potential penalties the court could impose, including imprisonment, fines, and restitution. After all of that, Graf admitted he was guilty of the counterfeiting charge. Assured that Graf was entering his guilty plea voluntarily and knowingly and that there was a sound factual basis for the plea, the court accepted his plea, adjudged him guilty, and scheduled sentencing for January 7, 2014.

Before sentencing, Graf absconded and failed to appear for court hearings. Several months later, he was re—arrested. Following some unrelated proceedings in state courts, Graf's federal sentencing was set for January 29, 2015. But on January 26, 2015, and represented by new counsel, Graf told the district court he wanted to withdraw the guilty plea the court had accepted sixteen months earlier. He then filed a written motion to withdraw his guilty plea, asserting that his first lawyer had never told him about the possibility of filing a so-called “Roviaro motion” to compel the government to disclose the identity of the confidential source, with the prospect of dismissing the case if the government were to refuse to make the disclosure. See Roviaro v. United States , 353 U.S. 53, 60–61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Graf asserted that he would have pursued a Roviaro motion before deciding whether to plead guilty.

The district court denied Graf's motion, concluding that he had “not offered any reasons, much less any just reasons, why the disclosure of the confidential informant would have substantially altered the course of his case or the factual scenario to which Graf admitted his guilt.” The court sentenced Graf to 63 months in prison, which was the high end of the Sentencing Guideline range for an offender with Graf's criminal history who manufactured counterfeit currency and obstructed justice by absconding and failing to appear at a subsequent hearing. U.S.S.G. §§ 2B5.1(b)(3) & 3C1.1(4)(E).

Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant “may withdraw a plea of guilty ... after the court accepts the plea, but before it imposes sentence if: ... the defendant can show a fair and just reason for requesting the withdrawal.” This court has recognized three general grounds that merit withdrawal of a guilty plea: where the defendant shows actual innocence or legal innocence, and where the guilty plea was not knowing and voluntary. United States v. Mays , 593 F.3d 603, 607 (7th Cir. 2010). None of those grounds applies here, however.

Whether to allow withdrawal of an accepted guilty plea is left to the sound discretion of the district court. United States v. Redmond , 667 F.3d 863, 870 (7th Cir. 2012) ; United States v. Peleti , 576 F.3d 377, 382 (7th Cir. 2009). Reversals are

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rare, though not unheard of. See, e.g., United States v. Fard , 775 F.3d 939 (7th Cir. 2015) (transcript showed plea was not knowing and voluntary); United States v. Gomez–Orozco , 188 F.3d 422 (7th Cir. 1999) (after pleading guilty, defendant learned he might be a U.S. citizen, which would be complete defense to charge); United States v. Groll , 992 F.2d 755 (7th Cir. 1993) (vacating unexplained denial of motion to withdraw where uncontested facts in presentence report supported entrapment defense and defendant had not known of that possible defense).

A plea of guilty is a formal and solemn step, where the defendant admits his guilt under oath after assuring the court, also under oath, that he is ready, willing, and able to make that decision after consulting sufficiently with his lawyer and being informed about all matters that he needs to know about to make the decision. See Fed. R. Crim. P. 11(b). A defendant's motion to...