Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2005

USA v. Wilson
Precedential or Non-Precedential: Precedential

Docket No. 05-1445




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                                   PRECEDENTIAL
         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 05-1445


             UNITED STATES OF AMERICA

                               v.

                VINCENT ELLIS WILSON,
                     a/k/a BEANIE

                    Vincent Ellis Wilson,
                                    Appellant


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
               (D.C. Crim. No. 02-cr-00295-5)
         District Judge: Hon. Christopher C. Conner


                  Argued October 24, 2005

    Before: SLOVITER and FISHER, Circuit Judges, and
               THOMPSON *, District Judge

                (Filed : November 30, 2005)


James J. West     (Argued)
West Long
Harrisburg, PA l7101

      Attorney for Appellant


*
      Hon. Anne E. Thompson, United States District Judge for
      the District of New Jersey, sitting by designation.
Christy H. Fawcett
William A. Behe (Argued)
Office of United States Attorney
Harrisburg, PA l7l08

       Attorneys for Appellee

                   OPINION OF THE COURT

SLOVITER, Circuit Judge.

        Vincent Ellis Wilson pled guilty to a felony information
charging two counts of using a communication facility to
facilitate drug trafficking in violation of 21 U.S.C. § 843(b).
The District Court sentenced Wilson to 34 months’
imprisonment for each count, sentences to run consecutively.
Wilson appeals. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).

                                  I.

        On August 4, 2004, a grand jury returned a superceding
indictment charging Wilson with criminal conspiracy to
distribute and possess with intent to distribute fifty grams or
more of crack cocaine and five kilograms or more of
hydrochloride in violation of 21 U.S.C. § 846 and 21 U.S.C. §
841. The indictment also charged Wilson and his two co-
defendants, Stephen Smith and Kelvin Smith, with traveling
interstate or causing others to travel interstate to facilitate drug
trafficking in violation of 18 U.S.C. § 1952.

       At the time of his indictment, Wilson was serving a state
sentence at Brockridge Correctional Center in Maryland. He
was brought to Pennsylvania pursuant to a writ of habeas corpus
ad prosequendum issued by the District Court. At his
arraignment for the federal offense, Wilson pled not guilty and
was appointed counsel. Subsequently, Wilson was transported
between Maryland and Pennsylvania to attend proceedings in the
federal matter pending in Pennsylvania pursuant to additional
writs of habeas corpus ad prosequendum.

                                  2
       Wilson, believing that his rights under the Interstate
Agreement on Detainers (“IAD”) had been violated, repeatedly
requested that his appointed counsel pursue this issue.1 He
complained that counsel did not respond to his arguments. In
response, the District Court appointed new counsel, but Wilson
alleges that this newly-appointed counsel also failed to pursue
his IAD claim. Following motions filed by that counsel and by
Wilson, the District Court once again appointed new counsel.

        On October 6, 2004, Wilson and his co-defendants pled
guilty pursuant to the terms of a plea agreement with the
government. Wilson waived indictment and pled guilty to a
felony information charging him with two counts of using a
communication facility to facilitate drug trafficking in violation
of 21 U.S.C. § 843(b). The plea agreement was conditioned on
acceptance by all three defendants and included a waiver of all
rights to appeal. The agreement provided:

       [T]he defendant knowingly waives the right to appeal any
       conviction and sentence, including a sentence imposed within
       the statutory maximum, on any and all grounds set forth in Title
       18, United States Code, Section 3742 or any other grounds,



       1
          The Interstate Agreement on Detainers provides, inter alia,
“If trial is not had on any indictment, information, or complaint
contemplated hereby prior to the prisoner’s being returned to the
original place of imprisonment pursuant to Article V(e) hereof,
such indictment, information, or complaint shall not be of any
further force or effect, and the court shall enter an order dismissing
the same with prejudice.” Interstate Agreement on Detainers Act
§ 9, Art. IV(e), 18 U.S.C.S. Appx. (Lexis Nexis 2005).

        Wilson argues that because he was shuttled between
Maryland and Pennsylvania before the charges against him were
adjudicated, the indictment should have been dismissed. Wilson
also claims that Article III of the IAD, which guarantees trial
within 180 days of the indictment, was violated. For the reasons
set forth in the text, we do not reach the merits of Wilson’s IAD
claims.

                                     3
       constitutional or non-constitutional, including the manner in
       which that sentence was determined in light of Blakely v.
       Washington, 

(June 24, 2004). The
       defendant also waives the defendant’s right to challenge any
       conviction or sentence or the manner in which the sentence was
       determined in any collateral proceeding, including but not
       limited to a motion brought under Title 28, United States Code,
       Section 2255.

App. at 45a. Three weeks after Wilson’s guilty plea was
accepted, he filed a motion to withdraw his guilty plea. The
District Court denied that motion.

       The District Court sentenced Wilson to thirty-four
months’ imprisonment on each count of conviction, sentences to
run consecutively, two years of supervised release, and payment
of a $200 special assessment.

                                II.

       On appeal, Wilson raises three claims: 1) His rights
under the IAD were violated and his counsel were ineffective for
not pursuing his IAD claim; 2) The District Court erred in
denying his motion to withdraw his guilty plea; 3) He is not
bound by the plea agreement in which he waived the right to
appeal any conviction or sentence.

       Because a valid plea agreement containing a waiver of
Wilson’s right to appeal would deprive this court of jurisdiction
over this appeal, United States v. Khattak, 

(3d Cir.
2001), we review the validity of the waiver provision and plea
agreement first.

       This court has held that “[w]aivers of appeals, if entered
into knowingly and voluntarily, are valid, unless they work a
miscarriage of justice.” 

In Khattak, we adopted the
considerations set forth in United States v. Teeter, 

(1st Cir. 2001), to determine if enforcement of a waiver would
work a miscarriage of justice. According to the Teeter court,



                                4
       [T]he term “miscarriage of justice” is more a
       concept than a constant. Nevertheless, some of the
       considerations come readily to mind: the clarity of
       the error, its gravity, its character (e.g., whether it
       concerns a fact issue, a sentencing guideline, or a
       statutory maximum), the impact of the error on the
       defendant, the impact of correcting the error on the
       government, and the extent to which the defendant
       acquiesced in the result. Other considerations
       doubtless will suggest themselves in specific cases.
       ...

              . . . While open-ended, the general reservation . . .
       will be applied
       sparingly and without undue generosity.

.

        Wilson does not contend that his waiver was not knowing
or voluntary. Rather, he argues that enforcement of the waiver
would work a “miscarriage of justice” because the plea
agreement was based on a coerced plea which the District Court
should have permitted him to withdraw. We agree with Wilson
that it would constitute a miscarriage of justice to enforce a
guilty plea made pursuant to a plea agreement if the defendant
should have been permitted to withdraw. Therefore, we must
determine if the District Court abused its discretion in denying
Wilson’s motion to withdraw his guilty plea.

      “If a motion for withdrawal of a plea of guilty or nolo
contendere is made before a sentence is imposed . . . the court
may permit withdrawal of the plea upon a showing by the
defendant of any fair and just reason.” United States v.
Martinez, 

, 114 (3d Cir.1986).2 This court has held



       2
         Martinez interpreted the then-applicable Rule 32 of the
Federal Rules of Criminal Procedure. The Federal Rules of
Criminal Procedure were amended in 2002 to, inter alia, move the
substance of prior Rule 32 authorizing defendants to seek the

                                 5
that withdrawal of a guilty plea is not an absolute right. See,
e.g., United States v. Brown, 

(3d Cir. 2001);
United States v. Martinez, 

(3d Cir. 1986). We
must look primarily to three factors in evaluating a motion to
withdraw a guilty plea: “(1) whether the defendant asserts his
innocence; (2) the strength of the defendant’s reasons for
withdrawing the plea; and (3) whether the government would be
prejudiced by the withdrawal.” United States. v. Jones, 

, 252 (3d Cir. 2003). We review a district court’s decision to
deny a motion for withdrawal of a guilty plea for abuse of
discretion. 

.

1. Claims of Innocence
        Wilson asserts his innocence but offers no facts in support
of that claim. We have stated that “[b]ald assertions of
innocence, . . . are insufficient to permit a defendant to withdraw
her guilty plea. Assertions of innocence must be buttressed by
facts in the record that support a claimed defense.” 

(citation omitted). Wilson’s bald assertion of innocence is
therefore insufficient to permit him to withdraw his guilty plea.

2. Strength of Reasons for Withdrawal
        Wilson argues that he should have been able to withdraw
his guilty plea because he was coerced into signing a package
plea agreement. Under Rule 11 of the Federal Rules of Criminal
Procedure, the trial judge must address a defendant about to
enter a plea of guilty to ensure that the defendant understands the
law of his crime in relation to the facts of his or her case, as well
as his or her rights as a criminal defendant. Wilson contends
that his Rule 11 plea colloquy was deficient because the District
Court judge did not specifically ask him if he had been coerced
into signing the plea agreement or ask him if his plea was part of
a package.




withdrawal of a guilty plea prior to sentencing to Fed. R. Crim. P.
11(d). Because the substance of the rule has not changed, precedent
referring to Rule 32 continues to be authoritative.


                                 6
        If Wilson were able to prove that his guilty plea was
coerced by his co-defendants, arguably that would have been a
reason to have allowed him to withdraw his guilty plea.
However, Wilson makes no such allegation. In a pro se motion
to the court to withdraw from his plea agreement, Wilson stated
only that “[t]heAUSA [sic] pit my co-defendants against me as
when she offerred [sic] this plea agreement because it was
contingent on my acceptance in order for it to be given to my co-
defendants. And since they were facing a much severe
sentencing [sic] than myself this place me [sic] in a[ ]
compromising position.” App. at 98a. The fact that Wilson was
motivated by a desire to assist his co-defendants in avoiding trial
did not show coercion nor did it negate the voluntariness of his
choice.

        In moving to withdraw his guilty plea, Wilson argued that
his plea was involuntary because it was part of a package plea.
In denying Wilson’s motion to withdraw for that reason, the
District Court stated: “In package plea arrangements, the
prosecutor offers a benefit or detriment to all (the defendant and
third parties) in order to persuade the entire group to plead
guilty.” App. at 107a (citing United States v. Mescual-Cruz, 

, 7 (1st Cir. 2004)).

        The District Court explained its ruling denying Wilson’s
motion to withdraw his guilty plea by focusing on the relevant
issue - voluntariness vel non. The Court stated:

       These arrangements obviously carry the risk that co-parties will
       exert pressure on the defendant to accept a plea that is against
       his or her personal interest. . . . If a plea is entered under
       coercive circumstances, it is unconstitutional and invalid. . . .
       But package plea agreements such as the one at issue here are
       not per se unconstitutional. The government is entitled to
       condition the benefits of a plea agreement on acceptance by co-
       defendants, and a defendant is entitled to accept the burdens of
       a plea based on a desire to assist others. . . . [T]he dispositive
       question in these cases, as in all others, is whether the
       defendant entered the plea knowingly and voluntarily.



                                   7
              The plea colloquy conducted by the court in this case
       reveals that defendant understood the consequences of his plea
       and had not been improperly pressured by the government or
       his co-defendant.

App. at 107a-08a (citations omitted).

        This court recently addressed the voluntariness of
“package pleas” in United States v. Hodge, 

(3d
Cir. 2005). Hodge had argued that his Rule 11 plea colloquy had
been deficient because the court did not know that his plea
agreement was linked to that of his brother. We vacated
Hodge’s sentence and remanded for resentencing because the
Government had violated the terms of the plea agreement by
recommending life imprisonment at sentencing despite its
agreement not to make any recommendation. In discussing the
issue Wilson raises here, i.e., the effect of a package deal, we
reviewed the colloquy for plain error, the standard required in
United States v. Vonn, 

(2002), and determined that
the court’s colloquy with Hodge was not deficient.3
Recognizing that “determining voluntariness in package deal
situations is an especially delicate matter,” we provided
“guidance to . . . assist future district courts considering such
pleas.” 

. We stated:

       [T]he parties must notify the district court that a
       package deal exists and state to the court on the
       record the specific terms of that deal. . . .

              Once a court has been told of a package deal,
       special care should be exercised during the Rule 11 plea
       colloquy to ensure that the defendant is pleading
       voluntarily.



       3
           In Vonn, the Supreme Court held that a defendant who
fails to object to Rule 11 error must carry the burden of showing on
appeal that the error was “plain, prejudicial, and disreputable to the
judicial system.” 

(quoting 

).

                                  8


        Wilson relies on Hodge for his claim that his plea
colloquy was deficient because the District Court did not know
that the plea was part of a package deal before accepting
Wilson’s plea and did not take special care to determine that the
plea was voluntary. The Government responds that the District
Court did know that the plea agreement was part of a package
deal. Moreover, it argues that because Hodge was decided after
Wilson’s sentencing, it was explicitly directed at “future district
courts considering [package] pleas,” 

and could not
have been followed by the District Court here. We agree.4

       Because Wilson’s Rule 11 colloquy shows that the
District Court took care to determine that Wilson’s plea was not
coerced, that Wilson entered a plea of guilty of his own free will,
and that he understood the terms of his plea agreement, we
conclude that the colloquy was not deficient.5

       Enforcement of Wilson’s waiver of appeal will not result
in a miscarriage of justice. His colloquy was not marred by error
and he knowingly and voluntarily waived his right to appeal.
Accordingly, he is bound by the waiver, and that waiver deprives



       4
         At oral argument, counsel for Wilson contended that
Kentucky v. Griffith, 

(1987), required that the
procedures mandated in Hodge be applied retroactively. We have
held that “Griffith should be confined to constitutional rules of
criminal procedure and thus does not require retroactive application
of new procedural decisions not constitutionally grounded.” Diggs
v. Owens, 

, 442 (3d Cir. 1987). Because the
procedures adopted in Hodge are not mandated by the Constitution,
we decline to apply them retroactively.
       5
         Inasmuch as Wilson does not claim innocence and offers
no valid reasons for withdrawal of his plea, we need not reach the
issue of whether such a withdrawal would have prejudiced the
Government. See, e.g., 

, 

.

                                 9
us of jurisdiction.6 Because Wilson waived his right to appeal,
we will dismiss Wilson’s appeal.

      Accordingly, we will affirm the District Court’s judgment
of conviction and sentence.




       6
          We need not decide on this direct appeal the effect of the
provision in the plea agreement waiving the right to take a
collateral appeal. Although this court has not addressed that issue,
the Government argues that such waivers have been enforced in
other circuits. See e.g., United States v. Cockerham, 

, 1183 (10th Cir. 2001) (holding “that a waiver of collateral
attack rights brought under § 2255 is generally enforceable where
the waiver is expressly stated in the plea agreement and where both
the plea and the waiver were knowingly and voluntarily made.”);
Mason v. United States, 

, 1069 (7th Cir. 2000)
(same); Watson v. United States, 

, 488-89 (6th Cir.
1999)(same); United States v. Wilkes, 

, 653 (5th Cir.
1994) (upholding an express waiver of postconviction proceedings,
including proceedings under § 2255, because court could “see no
principled means of distinguishing such a waiver from the
[enforceable] waiver of a right to appeal”).