Filed: Oct. 01, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-10642 ELEVENTH CIRCUIT OCTOBER 1, 2010 Non-Argument Calendar _ JOHN LEY CLERK D.C. Docket No. 3:09-cr-00142-MEF-WC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHICO UNTRAS MORGAN Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (October 1, 2010) Before CARNES, HULL and MARCUS, Circuit Judges. PER CURIAM: After pl
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-10642 ELEVENTH CIRCUIT OCTOBER 1, 2010 Non-Argument Calendar _ JOHN LEY CLERK D.C. Docket No. 3:09-cr-00142-MEF-WC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHICO UNTRAS MORGAN Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (October 1, 2010) Before CARNES, HULL and MARCUS, Circuit Judges. PER CURIAM: After ple..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10642 ELEVENTH CIRCUIT
OCTOBER 1, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00142-MEF-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHICO UNTRAS MORGAN
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Alabama
_________________________
(October 1, 2010)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
After pleading guilty, Chico Untras Morgan appeals his conviction for
distributing fifty or more grams of cocaine, in violation of 21 U.S.C. § 841(a)(1).
Morgan argues that the district court erred in denying his motion to withdraw his
guilty plea. After review, we affirm.
I. BACKGROUND
A. Plea Agreement
A grand jury indicted Morgan on two counts of distributing over five grams
of cocaine base (Counts 1 and 2), and one count of distributing over fifty grams of
cocaine base (Count 3), in violation of 21 U.S.C. § 841(a)(1). Morgan initially
entered a not guilty plea.
During plea negotiations, Morgan’s counsel, Collins Pettaway, Jr., and the
prosecutor, W. Brent Woodall, discussed the fact that Morgan had a 1995
Alabama conviction for unlawful possession of cocaine. Prosecutor Woodall
maintained that this prior Alabama conviction subjected Morgan to a mandatory
minimum twenty-year sentence. See 21 U.S.C. § 841(b)(1)(A) (providing a term
of imprisonment of no less than ten years unless the defendant committed the
offense “after a prior conviction for a felony drug offense has become final,” in
which case the term of imprisonment is no less than twenty years). After
consulting with the probation office, however, defense counsel Pettaway believed
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the prior Alabama conviction would not affect Morgan’s mandatory minimum
sentence because Morgan had received a pardon.
On October 6, 2009, Morgan filed a notice of his intent to change his plea to
guilty, and the district court set a plea hearing for 2:00 pm on October 8, 2009.
On the morning of October 8, 2009, Woodall emailed Pettaway the final
proposed plea agreement. Under the plea agreement, Morgan agreed to plead
guilty to Count 3 in exchange for the government’s promise to dismiss Counts 1
and 2. The plea agreement specified that if Morgan had a prior felony drug
conviction, he would be subject to a twenty-year minimum prison term in
accordance with 21 U.S.C. § 851, but if not, Morgan would be subject to a ten-
year minimum prison term.
The plea agreement also stated that Morgan understood, inter alia, that: (1)
the probation office would prepare a Presentence Investigation Report (“PSI”)
with guidelines calculations; (2) the PSI’s guidelines calculations might differ
from the projections of defense counsel and the government; (3) the sentencing
guidelines are advisory; (4) the district court was not bound by the parties’
understanding of the guidelines calculations; and (5) the district court “is required
to consider any applicable sentencing guidelines but may depart from these
3
guidelines under some circumstances.” Finally, the plea agreement contained an
appeal waiver in which Morgan agreed to waive his right to appeal his sentence.
On the same day, the government filed an information, pursuant to 21
U.S.C. § 851, advising Morgan that he was subject to increased punishment based
on his prior Alabama conviction. Before the plea hearing began, Woodall gave
Pettaway a copy of the § 851 information. Pettaway then met with Defendant
Morgan at the counsel table and reviewed the plea agreement and § 851
information with him. Ultimately, Morgan signed the plea agreement.
B. Plea Hearing on October 8, 2009
During the plea colloquy, Defendant Morgan indicated that he had read and
discussed the plea agreement with his counsel Pettaway before signing it and was
satisfied with Pettaway’s representation. Additionally, Morgan: (1) affirmed that
the plea agreement contained the only agreement he had reached with the
government, and that he had received no promises or assurances that were not
contained in the agreement; (2) told the court that he was pleading guilty
voluntarily and because he was guilty; (3) acknowledged his understanding that he
faced a term of imprisonment from twenty years to life if he had a prior felony
drug conviction, or ten years to life without such a conviction; (4) acknowledged
that the court might ultimately impose a sentence different than any estimate his
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attorney had given him; and (5) admitted that he knowingly, intentionally, and
willfully possessed over fifty grams of crack cocaine with the intent to distribute
it. The court accepted the plea agreement, found that Morgan’s plea was knowing
and voluntary and adjudicated Morgan guilty.
C. PSI
The PSI, prepared November 3, 2009 and revised December 1, 2009,
calculated a total offense level of 27 and a criminal history category of III (which
included Morgan’s 1995 Alabama conviction for possession of cocaine). As a
result, the PSI initially calculated an advisory guidelines range of 87 to 108
months’ imprisonment. Because the statutory mandatory minimum for Morgan’s
offense was twenty years, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851, the PSI
noted that Morgan’s advisory guidelines range became 240 months, pursuant to
U.S.S.G. § 5G1.1(b). Morgan did not file objections to the PSI. However,
Morgan did retain an additional lawyer, Susan James, to represent him.
D. Motion to Withdraw Guilty Plea
On January 20, 2010, Morgan’s counsel James filed a motion to withdraw
his guilty plea.1 Morgan argued that he had entered his plea based on Pettaway’s
1
According to the docket, Pettaway did not file a motion to withdraw, and James entered
an appearance on January 11, 2009.
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assurances that the mandatory minimum sentence was ten years and that the prior
Alabama conviction supporting the government’s § 851 enhancement was invalid
due to Morgan’s pardon. Morgan’s counsel James also filed an objection to the
§ 851 enhancement, arguing, inter alia, that because his plea was induced by
Pettaway’s erroneous advice as to the effect of his prior Alabama conviction on
his sentence, the prior conviction should not be used to enhance his sentence.2
E. Sentencing Hearing
At the sentencing hearing, the district court first addressed Morgan’s motion
to withdraw his guilty plea and heard from Morgan, Pettaway and two prosecutors.
Morgan agreed to waive the attorney-client privilege for purposes of his motion to
withdraw.
Pettaway explained that he mistakenly believed that a pardoned (but not
expunged) conviction could not support the § 851 enhancement. Before the plea
hearing, Pettaway explained to Morgan “all the possibilities,” and discussed with
Morgan that if the prior Alabama conviction was included in calculating his
sentence, he faced a minimum twenty-year sentence. Pettaway showed Morgan
2
Morgan’s objection to the § 851 enhancement did not argue that Morgan’s pardoned
Alabama conviction could not support the § 851 enhancement. Indeed, in this Court, the parties
seem to agree that the pardoned Alabama conviction qualified Morgan for the § 851
enhancement. Because the parties do not dispute this point, we assume arguendo that Morgan’s
pardoned Alabama conviction supported the § 851 enhancement.
6
the government’s § 851 information, told Morgan he thought the government was
“being a little unfair” and was “trying to pile on” Morgan, but advised Morgan
that the “pardon should help [him.]” While they talked, Pettaway scratched out
the portion of the plea agreement that contained the reference to the mandatory
minimum twenty-year sentence, telling Pettaway that he “didn’t think that this
would apply because of that pardon.”3 Although Pettaway believed the pardon
would avoid the twenty-year mandatory minimum, he was careful not to “talk in
absolutes” and qualified his statements.
After being sworn, Defendant Morgan testified that he was unaware of the
§ 851 enhancement until he received the PSI and that he would not have pled
guilty if he had “known about the 851 and understood what was going on.”
Morgan did not dispute that Pettaway reviewed the plea agreement and § 851
information with him before the plea hearing. Morgan, however, stated, “I don’t
know if he just wasn’t on the right page or maybe - - because - - every time I went
to court, there was papers thrown in front of me, and I didn’t get [a] chance to just
3
Pettaway’s scratched-out copy of the plea agreement was not the copy Morgan signed.
Although the signed plea agreement contains several hand-written alterations initialed by both
Defendant Morgan and prosecutor Woodall, the provision advising of a possible twenty-year
mandatory minimum sentence is unaltered.
Further, Pettaway explained that he considered asking Woodall to revise the plea
agreement to remove this language, but decided that it was “the statutory language, and . . . that
would go in the plea. If he had a prior, that would apply.”
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really look over the papers.” Morgan said that, although he told the magistrate
judge he understood the terms of the plea agreement, he did not really understand
them and “didn’t even really know it was a plea agreement.” Morgan admitted
signing the plea agreement, but said he did not read it because “it was just papers
in front of [him], and [he] was just told to sign the papers, so that’s what [he] did.”
Morgan recalled the magistrate judge advising him at the plea hearing that if he
had a prior felony conviction, he faced a twenty-year minimum sentence.
However, at the time, Morgan was relying on Pettaway’s assurances that the
pardoned conviction would not affect his sentence.
Prosecutors Woodall and Todd Brown advised the district court that they
discussed with Pettaway the possible effect of Defendant Morgan’s prior Alabama
conviction on his sentence several times in the weeks leading up to the plea
hearing. Prosecutor Brown explained that plea negotiations with Morgan were
complicated by the murder of a cooperating witness who was expected to testify in
several drug cases, including Morgan’s case.4 During plea negotiations, the
parties discussed the applicable mandatory minimum sentence and the possibility
of a downward departure for substantial assistance. Prosecutors Woodall and
4
Prosecutor Brown was involved in the plea negotiations because he was the prosecutor
assigned to the murder investigation.
8
Brown took the position that Morgan’s cooperation would need to include any
knowledge he had of the cooperating witness’s murder. Woodall explained to
defense counsel Pettaway that without full cooperation, Morgan’s statutory
minimum sentence would be twenty years.
The district court orally denied Morgan’s motion to withdraw his guilty
plea. The court found that Morgan had close assistance of counsel, that the
magistrate judge ensured that Morgan’s plea was knowing and voluntary and that
Morgan intelligently waived his rights and was advised that his sentencing range
would be twenty years to life if he had a prior felony drug conviction. The district
court noted that: (1) Morgan told the magistrate judge he had not been promised or
assured anything other than what was in the plea agreement, and (2) the executed
plea agreement did not have any crossed-out language concerning the twenty-year
mandatory minimum. Citing United States v. Pease, 240 F.3d 938 (11th Cir.
2001), the district court concluded that Morgan had not provided a fair and just
reason for withdrawing his guilty plea. The district court stressed that it had
listened to Morgan’s testimony as to what he did or did not understand and
observed his demeanor. The district court found that “if [Morgan] did not
understand, it had to be a conscious, intentional decision on [his] part to ignore all
9
of the things that were provided to [him] to give [him] that total knowledge of the
sentence that [he was] facing.”
After a brief recess, the district court proceeded to sentence Morgan. The
district court overruled Morgan’s objection to the § 851 enhancement for the same
reasons he denied Morgan’s motion to withdraw his guilty plea. The district court
adopted the PSI’s factual statements and guidelines calculations, and imposed the
mandatory minimum twenty-year sentence on Count 3. Morgan filed this appeal.
II. DISCUSSION
After the district court has accepted a guilty plea and before sentencing, the
defendant may withdraw a guilty plea if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To
determine whether a defendant has shown a fair and just reason for withdrawal, we
consider the totality of the circumstances surrounding the plea, including “(1)
whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and
(4) whether the government would be prejudiced if the defendant were allowed to
withdraw his plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988).
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(citation omitted). The district court decides the good faith, credibility, and weight
due a defendant’s assertions in support of a motion to withdraw his plea. Id.5
On appeal, Morgan argues that his attorney Pettaway’s misunderstanding as
to the effect of Morgan’s pardoned conviction on his mandatory minimum
sentence provides a fair and just reason for withdrawing his plea.6 Morgan’s
argument focuses on only one of the Buckles factors – the voluntariness of his
plea. Morgan contends that his guilty plea was not knowing and voluntary
because he relied upon his attorney’s erroneous representations that his pardoned
Alabama conviction would not increase his mandatory minimum sentence to
twenty years.7
The problem for Morgan is that both his plea agreement and the plea
colloquy clearly establish that Morgan understood at the time of his guilty plea
5
We review a district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Pease, 240 F.3d 938, 940 (11th Cir. 2001). The district court’s
decision is not an abuse of discretion unless it is “arbitrary or unreasonable.”
Buckles, 843 F.2d
at 471.
6
We disagree with the government’s contention that Morgan raises a separate claim for
ineffective assistance of counsel on direct appeal. Morgan’s arguments about Pettaway’s
performance are made solely in relation to his claim that his plea was involuntary and should
have been withdrawn.
7
Morgan’s reliance on Santobello v. New York, is misplaced. Morgan has never claimed
that his guilty plea was induced by a promise from the prosecutor. See Santobello, 404 U.S. 257,
92 S. Ct. 495 (1971) (concluding defendant should have been allowed to withdraw guilty plea
where prosecutor breached promise made in plea negotiations not to make a sentencing
recommendation).
11
that his attorney’s prediction of his sentence was not a guarantee and that the
district court had the discretion to impose a sentence up to the statutory maximum
of life imprisonment. The plea agreement and the plea colloquy also advised
Morgan that he would be subject to the twenty-year mandatory minimum prison
term if he had a prior felony drug conviction. Although Pettaway told Morgan he
thought Morgan could avoid the twenty-year mandatory minimum, Pettaway did
not talk in absolute terms, was careful to qualify his advice and made sure Morgan
knew all the possible consequences of pleading guilty, including the fact that if his
prior Alabama conviction were counted, he faced a mandatory minimum twenty-
year sentence. Further, Morgan told the magistrate judge that he had not relied on
any assurances that were not contained in the plea agreement. And importantly,
the district court made, in effect, this credibility finding: “if [Morgan] did not
understand, it had to be a conscious, intentional decision on [his] part to ignore all
of the things that were provided to [him] to give [him] that total knowledge of the
sentence that [he was] facing.” Under the totality of the circumstances, Morgan’s
attorney’s erroneous prediction as to Morgan’s mandatory minimum sentence does
not provide a fair and just reason for withdrawing Morgan’s plea. See United
States v. Pease, 240 F.3d 938, 940-41 (11th Cir. 2001) (affirming denial of motion
to withdraw guilty plea where defense counsel failed to uncover prior felony
12
convictions qualifying defendant as a career offender and, as a result, wrongly
predicted defendant’s sentence because plea agreement and plea colloquy advised
defendant he could not rely on defense counsel’s prediction of sentence and
sentencing court could impose sentence of up to life imprisonment). Accordingly,
the district court did not abuse its discretion in denying Morgan’s motion to
withdraw his guilty plea.
AFFIRMED.
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