Filed: Oct. 09, 2020
Latest Update: Oct. 09, 2020
Summary: Case: 19-40361 Document: 00515596056 Page: 1 Date Filed: 10/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 9, 2020 No. 19-40361 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Maceo Strother, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:17-CR-79-1 Before Higginbotham, Jones, and Higginson, Circuit Judges. Stephen A. Higginson, Circuit
Summary: Case: 19-40361 Document: 00515596056 Page: 1 Date Filed: 10/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 9, 2020 No. 19-40361 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Maceo Strother, Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:17-CR-79-1 Before Higginbotham, Jones, and Higginson, Circuit Judges. Stephen A. Higginson, Circuit ..
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Case: 19-40361 Document: 00515596056 Page: 1 Date Filed: 10/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 9, 2020
No. 19-40361
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Maceo Strother,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-79-1
Before Higginbotham, Jones, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Maceo Strother appeals his conviction and sentence for being a felon
in possession of a firearm, asserting that the district court erred in denying
his motion to withdraw his guilty plea. We AFFIRM.
I.
On March 24, 2017, a Plano police officer stopped a car driven by
Maceo Strother, which bore an expired temporary tag. Strother identified
himself using a false name and said that the car belonged to his girlfriend,
Merci Asa Mercadel. Unable to identify Strother, the officer arrested him for
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driving without a license and requested a drug-detecting dog. The dog alerted
to the presence of drugs in the car, and a search of the car revealed marijuana
seeds on the car’s floorboard, credit card applications in another person’s
name, and a Palmetto State Armory .223 caliber rifle, Model PA-15, along
with two magazines loaded with 58 rounds of ammunition. Strother was
charged with being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).
On July 30, 2018, Strother’s retained attorney, Paul Morgan, filed a
motion in limine to exclude jail calls between Strother and Mercadel, who the
prosecution planned to call as a witness at trial. In opposition to the motion
in limine, the prosecution argued that the jail calls, in which “Strother is
instructing [Mercadel] what to say with regards to the firearm, including that
she purchased the firearm and that the firearm belonged to her,” were
evidence establishing that Strother was conscious of his guilt.
Also on July 30, 2018, Morgan filed a motion to withdraw as counsel,
explaining that the prosecution had “indicated or insinuated to [Morgan]
that the Government believe[d] that [Morgan was] a ‘witness’ in some way,
shape or form to the alleged attempt by Mr. Strother to influence
[Mercadel’s] testimony in this matter.” Morgan stated that he could not
“effectively cross-examine a witness the Government has subpoenaed and
whom the Government believes that [Morgan] himself is a witness against.”
He asserted that he had “an ethical obligation” to withdraw as Strother’s
counsel and that continued representation would violate state bar
disciplinary rules.
The next day, the government filed notice that it had “entered into a
plea” with Strother.
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Following this notice and on the same day, Morgan filed motions to
withdraw both his motion to withdraw as counsel and the motion in limine,
reasoning that these motions were moot in light of the plea agreement.
Thereafter, on August 2, 2018, Strother signed a factual basis
accompanying the plea agreement stating, “I, Maceo Strother, knew that I
possessed the firearm described above after I had been previously convicted
of a felony. I knew that my possession of the firearm was prohibited by law
because I was a convicted felon.”
At the change-of-plea hearing on the same day, the magistrate judge
confirmed that Strother had read the indictment and discussed with Morgan
the facts of his case and any defense he might have to the charge. Strother
also affirmed that he was fully satisfied with Morgan’s representation and
confirmed that he was entering the plea because he was guilty of the charge
and not to help anyone else, and that he had not been coerced or threatened.
The prosecutor read the factual basis aloud in open court, and Strother
affirmed that it was entirely true and correct. When asked to describe his
offense in his own words, Strother responded, “I got pulled over and a
firearm was found in the trunk of a Mercedes Benz.” The magistrate judge
then confirmed, “did you know that you were in possession of that firearm
that was in the trunk of that Mercedes Benz,” to which Strother responded,
“Yes, Your Honor.”
The district court accepted the plea. According to the presentence
investigation report (“PSR”), which was made available to Strother on
November 1, 2018, Strother again admitted that the information in the factual
basis was true and correct during an interview with a probation officer.
On November 12, 2018, Morgan filed a second motion to withdraw as
counsel. Morgan attached a letter from Strother stating that he had always
maintained that he had no knowledge that the firearm was in the car, asserting
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that his plea was involuntary “on the basis of your personal merit being at
stake at the hands of the [government] if we persisted to go to [trial],” and
requesting that Morgan withdraw as his counsel.
On November 19, 2018, Strother filed a pro se motion to withdraw his
guilty plea.
At a November 30, 2018 hearing, Morgan explained that he and
Strother disagreed as to whether there was “a claim of innocence that’s
connected . . . to the conduct that he’s charged with,” and further disagreed
as to whether Strother should have moved to withdraw his plea. The
magistrate judge granted Morgan’s motion to withdraw as counsel and
appointed Ron Uselton as substitute counsel.
In his pro se motion to withdraw his plea, Strother argued that he was
unaware of the contents of the cargo in his girlfriend’s car and that, when he
entered his plea, he did not understand that the statute required that he
knowingly possess the firearm. He contended that his plea was involuntary
due to ineffective assistance of counsel because Morgan failed to investigate,
research case law, and “determine whether [Strother’s] alleged conduct was
within the parameters of [the statute of conviction].” After Uselton was
appointed, he filed a notice stating that Strother desired to proceed with his
motion to withdraw his plea.
At another hearing held before the magistrate judge, Strother testified
that he pleaded guilty, in part, because Morgan encouraged him to do so and
told him that his license was in jeopardy and that he was not “willing to risk
his bar” for him. Strother explained that he also pleaded guilty to eliminate
the pressure being applied by the government to his ex-girlfriend, Mercadel,
and also to one of his long-time friends. He agreed that no one had threatened
or coerced him to plead guilty. According to Strother, however, his plea was
not knowing and voluntary due to Morgan’s ineffective assistance because he
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“never elaborated the elements, the number one first initial element of
922(g), which is to knowingly possess.”
At Morgan’s request and pursuant to the court’s order, Morgan filed
an affidavit on January 14, 2019, attesting that Strother’s claim that Strother
pleaded guilty to protect him was false. Morgan estimated that he and
Strother had between 15 and 20 phone conversations over the course of his
representation, during which they discussed many topics related to
Strother’s case, including the government’s evidence, possible defenses, and
the advantages and disadvantages of pleading guilty. According to Morgan’s
affidavit, Strother admitted that he purchased the firearm in one of their
initial conversations. Morgan also stated that he had interviewed Mercadel
several times. She initially denied knowledge of the gun, then claimed an ex-
boyfriend put it in her car, and then claimed ownership of the gun. Morgan
found her to be not credible and “knew the two subsequent stories were
untruthful.” After Morgan advised Strother that he could not present
Mercadel’s false testimony and later raised his concerns that he could not
stay on the case if Strother planned to present false testimony, Strother stated
that he wanted to plead guilty.
On January 17, 2019, Strother filed an affidavit from Mercadel in
which she averred that the gun in the car belonged to a man she was dating
named Carlos, who was subsequently murdered. Along with the affidavit,
Strother filed a pro se notice explaining that he filed the affidavit to establish
the credibility of his assertion of innocence.
On March 21, 2019, the magistrate judge issued a report and
recommendation that Strother’s motion to withdraw his plea be denied
because all relevant factors weighed against him. The district court adopted
the report and recommendation and denied Strother’s motion to withdraw
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his guilty plea. Strother timely filed a notice of appeal. FED. R. APP. P.
4(b)(2).
II.
We first consider, as a threshold matter, whether Strother’s appeal is
barred by the appellate waiver in his plea agreement. Under the terms of the
plea agreement, Strother waived his right to appeal but reserved “the right
to appeal or seek collateral review of a claim of ineffective assistance of
counsel.” The government contends that Strother’s appeal does not fall
within the ineffective assistance of counsel exception to the waiver and is thus
barred. Strother argues that his appeal is not waived because “[t]he core of
his motion to withdraw” is an ineffective assistance of counsel claim, which
he expressly reserved the right to appeal.
We review whether an appellate waiver bars an appeal de novo,
considering (1) whether the waiver was knowing and voluntary, and (2)
whether, under the plain language of the plea agreement, the waiver applies
to the circumstances at issue. United States v. Harrison, 777 F.3d 227, 233 (5th
Cir. 2015) (citing United States v. Bond,
414 F.3d 542, 544 (5th Cir. 2005)).
We apply “ordinary principles of contract interpretation, construing waivers
narrowly and against the [g]overnment.”
Id. (alteration in original) (quoting
United States v. Keele,
755 F.3d 752, 754 (5th Cir. 2014)).
Strother argues that the waiver does not apply under the present
circumstances because the crux of his argument for withdrawal is that his
guilty plea “was rendered involuntary by ineffective assistance of counsel.”
The government counters that Strother’s appeal does not fit within the
appellate waiver’s exception for ineffective assistance of counsel claims
because under the seven-factor framework to evaluate plea withdrawals
established by United States v. Carr, 740 F.2d 339 (5th Cir. 1984),
“determining whether a defendant received close assistance of counsel . . . is
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distinct from determining constitutionally effective assistance of counsel
under the Sixth Amendment.”
While it is true that a constitutionally effective assistance of counsel
inquiry is distinct from an inquiry into whether a defendant received close
assistance of counsel (one of the seven factors relevant to the consideration
of a plea withdrawal under the Carr framework), Strother’s claim that he
received ineffective assistance of counsel is also central to his arguments on
several other of the Carr factors, particularly that his plea was not knowing
and voluntary. We have previously allowed appeal of a district court’s ruling
on a plea withdrawal motion despite a similar waiver where the appeal was
“derivative of [the defendant’s] claims that his plea was involuntary and that
he received ineffective assistance of counsel.” Harrison, 777 F.3d at 233.1
Because Strother’s arguments for plea withdrawal—particularly his
argument that his plea was not given knowingly and voluntarily—derive from
his claim that he received ineffective assistance of counsel, we choose to
address the merits of the district court’s denial of his motion to withdraw his
plea.
III.
We now turn to the merits of Strother’s appeal. We review a district
court’s denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Lord, 915 F.3d 1009, 1013 (5th Cir.), cert. denied,
140 S. Ct.
1
To the extent that the government suggests that Strother’s appeal does not
fall within the exception to the appellate waiver because Strother has not shown the
elements required to prevail on an ineffective assistance of counsel claim, we have
previously considered appeals on the merits which were based on, or derived from,
ineffectiveness claims, even though the defendants ultimately failed to prevail. See
Harrison, 777 F.3d at 236-37.
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320 (2019). “A district court abuses its discretion if it bases its decision on
an error of law or a clearly erroneous assessment of the evidence.” Lord, 915
F.3d at 1013-14 (quoting United States v. Powell,
354 F.3d 362, 370 (5th Cir.
2003)).
A defendant may withdraw a guilty plea after the district court accepts
the plea, but before it imposes a sentence, by showing a “fair and just reason”
for seeking withdrawal. FED. R. CRIM. P. 11(d)(2)(B). The burden for
establishing this reason lies with the defendant. Powell, 354 F.3d at 370; accord
Lord, 915 F.3d at 1014. To determine whether a defendant may withdraw a
guilty plea, the court must consider the following factors: (1) whether the
defendant has asserted his innocence; (2) whether the government would
suffer prejudice if the withdrawal motion were granted; (3) whether the
defendant delayed in filing his withdrawal motion; (4) whether the
withdrawal would substantially inconvenience the court; (5) whether close
assistance of counsel was available to the defendant; (6) whether the original
plea was knowing and voluntary; and (7) whether withdrawal would waste
judicial resources.
Carr, 740 F.2d at 343-44. No single factor or combination
of factors is dispositive, and the court must ultimately examine the totality of
the circumstances. Id.; see also
Lord, 915 F.3d at 1014.
A.
The first Carr factor asks the court to consider whether the defendant
has asserted his innocence. Carr, 740 F.2d at 343-44. The magistrate judge’s
report and recommendation, which was adopted by the district court,
concluded that this factor weighed against Strother’s withdrawal motion.
The report found that although Strother began to assert his innocence upon
making his motion to withdraw, his “assertions of innocence simply [did] not
outweigh his previously unequivocal declarations of guilt in connection with
his plea agreement.” On appeal, Strother argues that the district court erred
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in concluding that this factor weighed against withdrawal, pointing to his
testimony that “he asserted his factual innocence to his lawyer consistently
before the plea, and afterward to the court.” The government counters that
Strother cannot overcome his sworn statement that he knowingly possessed
the firearm, which was “especially credible in light of his admission to the
probation officer that the information in the factual basis was true and
correct.”
Under the Carr framework, the defendant must not only assert his
innocence, but also provide a “substantial supporting record” for this
assertion in order to support his motion to withdraw. United States v. Clark,
931 F.2d 292, 295 (5th Cir. 1991) (citing
Carr, 740 F.2d at 344). In support of
his assertion of innocence, Strother alleged that he did not own the car he
was driving at the time of his arrest, that he was unaware of the car’s
contents, and that he did not understand that his conduct did not satisfy the
requirements of 18 U.S.C. § 922(g)(1) when he pleaded guilty.
Neither the magistrate judge nor the district court found these
contentions to be supported by the record. Noting Strother’s repeated
assertions that he understood the essential elements of his charge during his
change-of-plea hearing and during a subsequent interview with a probation
officer, the district court found that the record did not support Strother’s
assertion that he was unaware of the “knowingly possessed” element of his
offense. “[S]olemn declarations in open court carry a strong presumption of
verity.” United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001)
(quoting Blackledge v. Allison,
431 U.S. 63, 74 (1977)). Given Strother’s
consistent, repeated statements in court affirming that he understood the
required elements of his charge up until the time of his plea withdrawal
motion, we find that the district court did not clearly err in making this
determination.
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On appeal, Strother further argues that the magistrate judge and
district court did not give due consideration to Mercadel’s affidavit, and
“appear to have assumed her affidavit was false.” Citing United States v.
Mikolajczyk, 137 F.3d 237, 246 (5th Cir. 1998), the magistrate judge’s report,
which was adopted by the district court, declined to consider Mercadel’s
affidavit because Strother submitted it pro se. Notably for our resolution of
this factor on appeal, the magistrate judge further reasoned that even if the
court were to consider Mercadel’s affidavit, it would not alter the results of
the report and recommendation because even if Mercadel’s statement as to
ownership of the firearm were true, this fact would not support Strother’s
statement that he was not aware the firearm was in the car, and thus would
not support his assertion of innocence. See
Harrison, 777 F.3d at 234-35
(holding that where the defendant’s evidence “add[s] little to his assertion
of innocence beyond reiterating his claim and denying the veracity of the
factual resume he signed in conjunction with his plea agreement,” such
evidence is insufficient to justify relief under Carr). We agree and thus
conclude that the district court did not clearly err in finding that Carr’s first
factor weighed against withdrawal.
B.
Carr’s fifth factor2 asks the court to consider whether “close
assistance of counsel” was available to the defendant. Carr, 740 F.2d at 343-
44. The magistrate judge, with reasoning adopted by the district court, found
that this factor weighed against withdrawal. In making this finding, the
magistrate judge’s report cited the several motions that Morgan filed on
Strother’s behalf, the favorable plea agreement that Morgan negotiated for
Strother, Morgan’s affidavit attesting that he had between 15 and 20 phone
2
The remaining Carr factors will be addressed later in this opinion.
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conversations with Strother to discuss his case and spent over 100 hours
working on the matter, and Strother’s testimony at his plea colloquy
affirming that he was “fully satisfied with the representation and advice
[he’d] received from [Morgan].” On appeal, Strother contends that this
focus was misplaced because “[t]he issue was what did the attorney
investigate, conclude and advise pertaining to the veracity of Ms. Mercadel’s
[affidavit] . . . and Mr. Strother’s lack of knowledge that the rifle was in [the
car].”
Determining whether close assistance of counsel was available under
Carr “requires a fact-intensive inquiry” which is distinct from an inquiry into
whether the defendant received effective assistance of counsel in accordance
with the Sixth Amendment. United States v. McKnight, 570 F.3d 641, 646 (5th
Cir. 2009); accord United States v. Urias-Marrufo,
744 F.3d 361, 365 (5th Cir.
2014). We have previously found that close assistance of counsel was
available where counsel negotiated a plea agreement, filed motions, discussed
the case with the defendant, and explained the defendant’s rights and the
weight of the evidence, United States v. Benavides,
793 F.2d 612, 613-18, and
where counsel was available throughout the proceedings and the defendant
expressed satisfaction with counsel,
Lord, 915 F.3d at 1015-16.
The record supports that counsel was available to Strother throughout
the proceedings, that Morgan filed motions and negotiated a plea agreement
on Strother’s behalf, and that Morgan discussed the case, the weight of the
evidence, and Strother’s rights with Strother. Strother testified at his plea
colloquy that he was “fully satisfied” with Morgan’s representation. The
district court did not clearly err in finding that this factor weighed against
withdrawal.
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C.
The sixth Carr factor asks whether the defendant’s original plea was
knowing and voluntary. Carr, 740 F.2d at 343-44. A guilty plea involves the
waiver of constitutional rights, and thus must be “voluntary, knowing, and
intelligent.”
Lord, 915 F.3d at 1016 (citing Brady v. United States,
397 U.S.
742, 748 (1970)). This requires that the defendant understand the nature of
the charges against him, the consequences of his plea, and the nature of the
constitutional protection that he is waiving.
Urias-Marrufo, 744 F.3d at 366;
accord
Lord, 915 F.3d at 1016.
In his motion to withdraw, Strother asserted that his original plea was
involuntary because he received ineffective assistance of counsel and he did
not understand the “knowingly possessed” element of his charge. The
district court found that Strother’s plea was given knowingly and voluntarily
because Strother was advised and understood the essential elements of his
charge and the consequences of pleading guilty. We agree.
Prior to his motion to withdraw, Strother repeatedly affirmed that he
knew that he was in possession of the firearm at the time of his arrest and that
he understood the “knowingly possessed” element of his charge. During his
plea hearing, Strother testified that he knew that he was in possession of the
firearm that was found in the trunk of the car. Strother further affirmed that
he understood each of the essential elements of his charge, including “that
the defendant knowingly possessed the firearm as charged.” The factual
basis of Strother’s guilty plea, which he affirmed was entirely true and correct
during his plea colloquy, read “I, Maceo Strother, knew that I possessed the
firearm described above after I had been previously convicted of a felony. I
knew that my possession of the firearm was prohibited by law because I was
a convicted felon.” Strother again confirmed that the information in the
factual basis was true and correct during an interview with a probation officer.
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In support of his argument that he received ineffective assistance of
counsel, Strother asserted in his motion to withdraw that Morgan failed to
“investigate [Strother’s] conduct, analyze discovery material, and research
case law to determine whether . . . Strother’s alleged conduct was within the
parameters of the statute [Strother] was deemed to violate.” On appeal,
Strother additionally invokes his prior contention that he pleaded guilty to
protect Morgan.
Strother’s prior sworn statements at rearraignment are in tension with
Strother’s ineffective assistance arguments. 3 During his plea hearing, as
noted by the magistrate judge, Strother confirmed that he was “fully
satisfied” with Morgan’s representation and specifically testified that he and
Morgan had discussed all elements of his indictment, the facts of his case and
any defense to his charge, the Federal Sentencing Guidelines, his full plea
agreement, and the entire factual basis to his plea agreement.
Contrary to Strother’s subsequent assertion that he pleaded guilty to
protect Morgan, Strother previously stated at his plea hearing that no one
had attempted to force, threaten, coerce, or make him plead guilty, that he
was not entering his plea to help anyone else, and that he was entering into
3
Although not relied upon by Strother, United States v. Urias-Marrufo, 744
F.3d 361, 365 (5th Cir. 2014), is instructively distinguishable from this case. In Urias-
Marrufo, we vacated and remanded a district court’s denial of the defendant’s plea
withdrawal motion because the district court erroneously held that it could not address
the defendant’s ineffective assistance of counsel claim in connection with the
defendant’s motion to withdraw her plea. Here, the magistrate judge and district court
did consider Strother’s ineffective assistance of counsel argument in connection with
Strother’s assertion that his plea was involuntary and found the argument to lack
sufficient merit, utilizing the Carr factors, to justify withdrawal of his plea. Notably, the
government is careful to acknowledge that our decision “will not prejudice Strother’s
right to raise ineffective assistance of counsel in a motion to vacate under 28 U.S.C. §
2255.”
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the plea of his own free will. We give significant weight to a defendant’s
sworn testimony that his plea is voluntary and uncoerced. See Clark, 931 F.2d
at 295 (“[T]he defendant’s declaration in open court that his plea is not the
product of threats or coercion carries a strong presumption of veracity.”)
(citation omitted); accord
Lampazianie, 251 F.3d at 524. Given Strother’s
consistent testimony that he understood the elements of his charge and the
consequences of his plea, and that his plea was uncoerced and the result of
thorough consultation with his attorney, we conclude that the district court
did not clearly err in finding that the sixth Carr factor weighed against
withdrawal.
D.
The third Carr factor asks whether the defendant delayed in filing his
motion to withdraw. Carr, 740 F.2d at 343-44. The district court found that
the approximately three-month delay between Strother’s guilty plea and his
plea withdrawal motion, submitted after his receipt of the PSR, weighed
against granting withdrawal. On appeal, Strother argues that, contrary to the
district court’s view that he decided to file his motion to withdraw after
reviewing the PSR, he consistently asserted his innocence prior to entering
his guilty plea. As discussed, Strother’s contention that he consistently
asserted his innocence prior to entering his guilty plea is not supported by the
record. Further, as cited by the district court, we have previously held that
three months between the entering of a guilty plea and the filing of a motion
to withdraw constitutes a significant delay that weighs against granting
withdrawal. See United States v. Grant,
117 F.3d 788, 790 (5th Cir. 1997); see
also United States v. Thomas,
13 F.3d 151, 153 (5th Cir. 1994);
Carr, 740 F.2d
at 345. The district court did not clearly err in finding that this factor weighed
against withdrawal.
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E.
The remaining Carr factors ask the court to consider whether the
government would suffer prejudice if the withdrawal motion were granted,
whether withdrawal would substantially inconvenience the court, and
whether withdrawal would waste judicial resources. Carr, 740 F.2d at 343-
44. The magistrate judge and district court found these factors to weigh
against granting withdrawal. In its opposition to Strother’s motion to
withdraw, the government contended that the “efforts and manpower”
required for trial would need to be refocused and resources shifted if
Strother’s plea withdrawal were granted. Strother argues on appeal that the
government has failed to show how it would be prejudiced by withdrawal of
Strother’s plea, but he does not directly refute the government’s assertions.
Strother additionally contends that the district court would not be
inconvenienced and judicial resources would not be wasted by withdrawal.
“[T]he district court is in the best position to know the effect that withdrawal
has on its resources.”
McKnight, 570 F.3d at 650 (citing
Carr, 740 F.2d at
345). The district court did not clearly err in finding these factors to weigh
against withdrawal.
IV.
Based on the foregoing analysis and considering the totality of the
circumstances, we conclude that the district court did not abuse its discretion
in denying Strother’s motion to withdraw his guilty plea.
AFFIRMED.
15
