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


6-6-2005

USA v. Wilder
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2746




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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 04-2746
                  ____________

        UNITED STATES OF AMERICA

                        v.

   GARY KENNETH WILDER, JR. a/k/a JAWS


              Gary Kenneth Wilder, Jr.,

                            Appellant
                  ____________

  On Appeal from the United States District Court
     for the Western District of Pennsylvania
             (D.C. No. 03-cr-00072-13)
   District Judge: Honorable Joy Flowers Conti
                   ____________

    Submitted Under Third Circuit LAR 34.1(a)
                 April 1, 2005

Before: ALITO, SMITH and FISHER, Circuit Judges.

              (Filed: June 6, 2005)
                  ____________

           OPINION OF THE COURT
                ____________
FISHER, Circuit Judge.

       Appellant Gary Kenneth Wilder, Jr., appeals from an order of the United States

District Court for the Western District of Pennsylvania, entered June 15, 2004, denying

his motion to withdraw a previously entered guilty plea. Appellant also challenges his

sentence under United States v. Booker, 543 U.S. —, 

(2005). As explained

herein, we will vacate the denial of the motion to withdraw the guilty plea, vacate the

sentence and remand for further proceedings. Because the underlying course of events is

known to the parties, we focus here on the rationale for our decision.

                                             I.

       “We review a district court’s ruling denying a defendant’s motion to withdraw his

guilty plea before sentencing pursuant to an abuse of discretion standard.” United States

v. Jones, 

, 252 (3d Cir. 2003) (citing United States v. Harris, 

,

1210 (3d Cir.1995)). A district court commits an abuse of discretion when it fails to

follow or misapplies controlling precedent. See United States v. Mitchell, 

,

247 (3d Cir. 2004); see also Planned Parenthood of Central New Jersey v. Attorney

General of the State of New Jersey, 

, 265 (3d Cir. 2002) (“a court abuses its

discretion when its ruling is founded on an error of law or a misapplication of law to the

facts”).




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       Fed. R. Crim. P. 11(d)(2)(B)1 provides that “[a] defendant may withdraw a plea of

guilty ... (2) after the court accepts the plea, but before it imposes sentence if: ... (B) the

defendant can show a fair and just reason for requesting the withdrawal.” Most recently

in Jones, we explained that “[o]nce a [district] court accepts a defendant’s guilty plea, the

defendant is not entitled to withdraw that plea simply at his whim. Rather, pursuant to

[Fed. R. Crim P. 11(d)], a defendant must have a ‘fair and just reason’ for withdrawing a

plea of 

(internal citations omitted). In a series of cases, this

Court has explained that, in evaluating whether a defendant has shown “fair and just

reason” for the withdrawal, a district court “must consider three factors ... (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.” Id.; see also United States v. Brown, 

, 815 (3d Cir. 2001)

(“We look to three factors to evaluate a motion to withdraw: [listing the factors]”);

n.1 (listing the factors); United States v. Jones, 

, 318

(3d Cir. 1992) (“We have held that three factors must be considered when a district court

evaluates a motion to withdraw a guilty plea: [listing the factors]”), superceded by statute




       1
         Prior to 2002, Fed. R. Crim. P. 32(e) governed withdrawal of a guilty plea. As
part of the “general restyling of the Criminal Rules” which occurred in 2002, the
substance of Rule 32(e) was moved to Rule 11(d) & (e). See Advisory Committee Notes
to Rule 32 – 2002 Amendments; see also Advisory Committee Notes to Rule 11 – 2002
Amendments. This change did not affect the analysis applicable to a motion to withdraw
a guilty plea, and thus precedent referring to Rule 32(e) continues to be authoritative.

                                                3
on other grounds; United States v. Huff, 

, 712 (3d Cir. 1989) (“A defendant

must have a fair and just reason for withdrawing a plea of guilty. We look to three factors

to evaluate his motion to withdraw: [listing the factors]”); United States v. Martinez, 

, 114 (3d Cir. 1986) (“In evaluating a motion under Rule 32(d), we have looked

primarily to three factors ... The three factors provide guideposts in evaluating whether a

district court abused its discretion in determining whether a criminal defendant has

asserted a ‘fair and just’ reason for withdrawal of a plea of guilty ...”); United States v.

Trott, 

, 915 (3d Cir. 1986) (“a defendant must have a ‘fair and just reason’

for withdrawing a plea. In evaluating such a motion, we have looked primarily to three

factors: [listing the factors]”) (internal citation omitted).2 This analysis requires that a

district court consider each factor, but critically, does not make any one mandatory such

that failure to establish one will necessarily dictate rejection of the motion. That the

analysis is one of consideration and balancing is shown by its application in Jones where

we considered the defendant’s argument on the second factor, despite having already

concluded that he had failed to meaningfully assert his innocence. 

-

255.3

        2
       Consideration of the third factor – prejudice to the government – may be
dispensed with where a defendant has not made a showing of “fair and just reason” to
withdraw the guilty plea. See e.g., 

; 

.
        3
        In the earlier Jones 

, although the Court stated that “[t]he
defendant must [] not only reassert innocence, but give sufficient reasons to explain why
contradictory positions were taken before the district court and why permission should be
given to withdraw the guilty plea,” it also spoke of “considering” each of the three

                                               4
                                              II.

       In denying the motion, the District Court first took note of the government’s

concession that it would suffer no prejudice on account of the withdrawal. The District

Court also concluded that Appellant’s argument regarding ineffective assistance of

counsel “had merit,” and thus supported his desire to withdraw the guilty plea. The

motion was denied, however, on the ground that Appellant had failed to meaningfully

assert his innocence. In the course of its analysis, the District Court made clear that it

considered each of the three factors identified by this Court to be mandatory. See Mem.

Op. at 11 (titling section “Defendant must meet all three factors in order to withdraw his

guilty plea”); 

(noting and explicitly agreeing with the government’s contention

that “defendant must meet all of the factors in order to withdraw his plea”); 

(“Because a criminal defendant must meet all three prongs of the framework in order to

withdraw his guilty plea, and because the court finds that defendant failed to

meaningfully assert his innocence, the court need not address the second and third prongs

of the framework [applicable to the ineffective assistance of counsel claim].”). While we

see no error in the District Court’s conclusion that Appellant failed to meaningfully assert

his innocence, because we perceive that the District Court conducted its analysis under

the mistaken impression that each of the three factors was mandatory, we must find that

the District Court abused its discretion in denying the motion, and accordingly, we will



factors. See 

the judgment of conviction and remand for further consideration of Appellant’s

motion to withdraw the guilty plea under the correct analysis.

                                            III.

       By letter dated March 3, 2005, Appellant indicated a desire to challenge his

sentence under Booker. The sentencing issues that Appellant raises are best determined

by the District Court in the first instance. Accordingly, we will vacate the sentence and

further instruct the District Court that if, on remand, Appellant’s motion to withdraw the

guilty plea is again denied under the appropriate analysis, Appellant should be

resentenced in accordance with Booker.




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