NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-1130
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                   WILLIE BROOKS,
                                              Appellant
                               _______________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          D.C. Criminal No. 07-cr-00705-001
                             (Honorable Gene E.K. Pratter)
                                   ______________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 23, 2011

         Before: McKEE, Chief Judge, SCIRICA and GARTH, Circuit Judges.

                                   (Filed: June 14, 2011)
                                   _________________

                               OPINION OF THE COURT
                                  _________________

SCIRICA, Circuit Judge.

       After steadfastly insisting on presenting his case to a jury throughout the

protracted pre-trial process, Willie Brooks abruptly informed his attorney of his desire to

plead guilty to two counts of unlawful possession of a firearm by an armed career

criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), just as his oft-continued trial
was set to commence. Prior to sentencing, however, Brooks moved to withdraw his guilty

plea. The gist of his motion was twofold. First, he claimed to have believed his attorney

had not zealously formulated a defense on his behalf and was inadequately prepared for

trial. Second, he alleged his attorney provided erroneous advice regarding his likely

sentencing exposure. Troubled by his attorney‟s alleged lack of devotion to his cause and

purportedly operating under the mistaken impression that he would receive less than the

mandatory minimum of fifteen years‟ imprisonment, Brooks claimed to have believed he

had “no other choice” but to plead guilty. After conducting an evidentiary hearing, the

District Court denied Brooks‟s motion. Because the court did not abuse its discretion in

rejecting Brooks‟s attempt to withdraw his guilty plea, we will affirm.

                                             I.

       Brooks, represented by his attorney, Kai Scott, pleaded guilty in open court on

January 26, 2009, to both counts charged in the indictment.1 As mandated by Fed. R.


1
  After witnessing Brooks speed through a red light on July 13, 2007, Newtown
Township Police Officer Paul Deppi attempted to effect a traffic stop. Brooks proved
unwilling to submit, however, and he fled at high speeds, leading Deppi and Officer
Christopher Joseph on a chase through Tyler State Park that ended only after Brooks had
struck both officers‟ patrol vehicles with his minivan. Once halted, Brooks ignored
instructions to place his hands above his head and instead appeared to reach toward the
passenger seat. Duly alarmed, Joseph smashed Brooks‟ passenger window—which had
been damaged during the mid-chase collision—with the butt of his service weapon, and
Deppi deployed his Taser in a mildly successful effort to subdue the uncooperative
Brooks, whom the officers eventually removed from the van and placed in handcuffs. In
the course of executing a search warrant on Brooks‟ minivan, detectives seized a black
duffle bag in which they found a Smith & Wesson 9mm handgun loaded with 15 rounds,
including one in the chamber. The gun was registered to Brooks‟ girlfriend, who later
pleaded guilty to being a straw purchaser of the firearm on Brooks‟ behalf. Pennsylvania
State Police determined the gun was a ballistics match to bullets fired at police during an
altercation in Radnor Township on December 6, 2006. Brooks was indicted for both the
                                             2
Crim. P. 11(b), the court engaged Brooks in a lengthy change-of-plea colloquy. While

under oath, Brooks represented (1) he was satisfied with his attorney‟s advice and

advocacy; (2) he understood the charges against him and recognized that, by pleading

guilty, he was voluntarily relinquishing a host of constitutional and statutory rights; (3) he

had not received any agreement or promises from the government in exchange for his

plea; (4) the prosecutor had accurately recited the factual and legal basis for the plea; (5)

he understood he faced a mandatory minimum sentence of fifteen years‟ imprisonment

and could be sentenced, at the court‟s discretion after reviewing the sentencing

guidelines, to a term of life imprisonment; (6) he appreciated he would be estopped from

withdrawing his guilty plea should the court impose a sentence more severe than either he

or his attorney anticipated; and (7) his decision to change his plea had been made of his

own accord and was not the product of threats or coercion.

       On June 8, 2009, the date on which Brooks‟s sentencing hearing had been

scheduled to take place, Brooks moved for the appointment of new counsel and

announced he wished to withdraw his guilty plea. New counsel Wayne Maynard was

appointed on June 11, 2009, and the court held an evidentiary hearing on December 10,

2009. Brooks, testifying again under oath, claimed he felt more or less obligated to plead

guilty because he believed Scott had not devised a coherent trial strategy and because

Scott had led him to believe he would “probably get no more than 15 years [in prison].”

Scott forcefully refuted Brooks‟s characterization of her representation. Despite having


Newtown and Radnor incidents. United States v. Brooks, No. 07-705-1, 2010 U.S. Dist.
LEXIS 57650 at *1-3 (E.D. Pa., May 24, 2010).
                                              3
conveyed her assessment that the case would be “very difficult to win,” she remembered

her client being “emphatic about going to trial,” and she chronicled the manner in which

she prepared accordingly. She also recalled counseling Brooks about his likely sentencing

exposure. She testified she told him that, based on his classification as an armed career

criminal, his criminal history category of VI and the corresponding offense level of 34

would subject him to at least a mandatory minimum sentence of fifteen years.

       The court denied Brooks‟s motion.2 Finding Brooks had failed to establish a “fair

and just” reason warranting withdrawal of his guilty plea, the court reasoned Brooks had

neither supported his weak assertion of innocence with exculpatory evidence in the

record nor demonstrated sufficiently strong justifications for his attempted withdrawal.

The court deemed Brooks‟s “meager and disingenuous” presentation, in which he asked

the court to “indulge his whims” and absolve him of “the consequences of his own

knowing and voluntary actions,” an affront to “the integrity of the judicial system.”

United States v. Brooks, No. 07-705-1, 

at *11-12 (E.D.

Pa., May 24, 2010). The court sentenced Brooks to 262 months‟ imprisonment on each of

the counts, to be served concurrently, followed by five years‟ supervised release. Brooks

timely appealed.3

                                            II.




2
  Throughout this opinion, we will cite to the District Court‟s Second Amended
Memorandum, which was filed on May 24, 2010.
3
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
                                             4
       “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). “The district court retains a great deal of

discretion to deny a withdrawal motion.” United States v. Jones, 

, 318 (3d

Cir. 1992), superseded by statute on other grounds as stated in United States v.

Robertson, 

, 414 (3d Cir. 1999). “[A] guilty plea is a grave and solemn act.”

Brady v. United States, 

, 748 (1970). Accordingly, it “may not automatically

be withdrawn at the defendant‟s whim.” United States v. Brown, 

, 815 (3d

Cir. 2001). Rather, the defendant bears a “substantial” burden: he must persuade the court

a “fair and just reason” exists for permitting withdrawal. 

(quoting

Fed. R. Crim. P. 11(d)(2)(B)). In assessing whether a defendant has satisfied this burden,

a court must consider “(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.4

                                              A.

       The first factor requires a defendant both to proclaim his innocence and to fortify

this assertion by identifying exculpatory evidence in the record. See 

(“Bald assertions of innocence . . . are insufficient to permit a defendant to withdraw


4
 Because “the Government is not required to show prejudice when a defendant has
shown no sufficient grounds for permitting withdrawal of a plea,” United States v.
Martinez, 

, 116 (3d Cir. 1986) (internal quotation marks omitted), the
District Court confined its analysis to the first two prongs of the test outlined in Jones.
Given the inadequacy of Brooks‟s presentation on these prongs, we too decline to
undertake an extended prejudice inquiry.
                                              5
her guilty plea. Assertions of innocence must be buttressed by facts in the record that

support a claimed defense.”) (internal quotation marks omitted). Moreover, after

accepting responsibility for the charged offenses under oath at a properly conducted Rule

11 colloquy, a defendant must “not only reassert innocence, but give sufficient reasons to

explain why contradictory positions were taken before the district court.” 

; see also Blackledge v. Allison, 

, 74 (1977) (“Solemn declarations in

open court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.”).

       In evaluating Brooks‟s showing on this front, the District Court discerned scant

support for the proposition that Brooks had proclaimed his innocence and even less

support for the notion that he had “provided . . . record facts to „buttress‟ any such

assertion with any recognizable defense.” Brooks, 

at *11.5

At the hearing on Brooks‟s motion to withdraw his guilty plea, Maynard encouraged the

court to view his client‟s initial commitment to pursuing the case to trial as tantamount to

a profession of innocence. After musing that this interpretation would necessitate “a leap

of faith of some sort,” the District Judge, speaking from the bench, addressed Brooks‟s

inability to muster support for this purported assertion:



5
  At the hearing on his motion to withdraw the guilty plea, Brooks intimated he was in
possession of information that might have gone toward his defense. Despite being
prompted by his attorney to divulge “the potential value” of this information, Brooks
declined to reveal its substantive content, opting instead to save it for the trial he hoped
the District Court would order. Even assuming Brooks did possess such information, his
                                              6
       [E]ven if you had actually articulated in words of one or two syllables a
       claim of actual innocence, that simple claim is not sufficient under the cases
       to show that you have a fair and just reason for withdrawing your guilty
       plea. I must say that everything I know about this case would suggest,
       indeed, that the evidence is inconsistent with any claim of innocence, if you
       had made such a claim. And I‟m going to assume that Mr. Maynard has
       labored mightily and with the highest professional talent to buttress your
       position but he has been unsuccessful because he could not be successful in
       this case given the lack of evidence to support the notion that you could,
       with any believability, assert actual innocence.

Furthermore, in its order denying Brooks‟s motion, the court found his “excuses for

having taken numerous contradictory positions under oath at his guilty plea hearing as

compared to his December 10 story were, to say the least, unpersuasive and disrespectful,

not only of the Court but of his own character and the value of his word.” Brooks, 

at *11.

       Given the weak nature of Brooks‟s alleged assertion of innocence, his inability to

direct the court‟s attention to evidence that might have exonerated him of the charged

offenses was doubly damning. And, as the court concluded, Brooks‟s failure to furnish a

valid rationale for repudiating the statements he offered during the Rule 11 colloquy

further undermined the plausibility of his assertion of innocence. We find the court‟s

logic sound and agree that application of the first factor weighed against granting

Brooks‟s motion.

                                              B.

       Tacitly acknowledging the manifest weakness of his showing on the first factor,

Brooks tries to discount its significance and to focus instead on the second factor, i.e., the


calculated reticence leaves us unable to disturb the court‟s finding as to the dearth of
                                              7
supposed strength of his justifications for attempting to withdraw his plea. As noted,

Brooks staked his motion on Scott‟s allegedly lackluster preparation for trial and on her

alleged failure to offer accurate advice about Brooks‟s possible sentencing exposure. The

District Court, however, found Brooks‟s “11th hour allegations against his former

attorney are without merit and are unavailing to him as a basis upon which to permit a

wholesale abandonment of his many sworn statements at his guilty plea hearing.” Brooks,

at *12. Because the court‟s findings were premised on

credibility determinations made after observing Brooks and Scott testify, we are satisfied

the court did not abuse its discretion in labeling insufficient Brooks‟s proffered reasons

for attempting to withdraw his plea.

       “The good faith, credibility and weight of a defendant‟s assertions and those made

on his behalf in support of a motion [to withdraw a guilty plea prior to sentencing] are

preeminently issues for the hearing court to decide.” United States v. Washington, 

, 281 (3d Cir. 1965). Based on the testimony provided at the evidentiary hearing,

the court concluded Brooks‟s “reasons for pleading guilty—and his reasons for wanting

to withdraw that plea—are simply not credible, especially in the face of Ms. Scott‟s

wholly credible account recounting the circumstances leading up to and surrounding Mr.

Brooks‟s guilty plea.” Brooks, 

at *12. During the hearing

on Brooks‟s motion to withdraw his plea, the court stated:

       I believe totally Ms. Scott when she tells me she was prepared to do her
       level best for you, and that she had prepared that which she could prepare.
       But a lawyer, such as Ms. Scott, cannot make up stuff and go through the

evidence buttressing his alleged assertion of innocence.
                                             8
       trial because somebody wants a trial. A lawyer is obliged to have a reason
       for submitting evidence and making arguments in court on behalf of a
       client. I believe that she is credible when she tells me that she was ready,
       she was willing and she was able to proceed on your behalf. . . .

       But more importantly, when we were together, in January of 2009, you had
       multiple opportunities to tell me of any discomfort or lack of conviction
       that you had with respect to entering a guilty plea. And I find it extremely
       distressing that you would take an oath so lightly as to now come and say
       that, well, you were just saying what you thought I wanted to hear. So I
       don‟t know . . . when you‟re telling me the truth, and I certainly have no
       reason to believe you here today.

Such credibility findings are committed in the first instance to the discretion of the trial

judge. See United States v. Trott, 

, 915 (3d Cir. 1985) (“[E]valuation [of the

defendant‟s demeanor when entering a guilty plea] is primarily within the province of the

district court.”); Gov’t of the Virgin Islands v. Berry, 

, 220 (3d Cir. 1980)

(“The trial court recognized that credible assertions of innocence by the defendant are of

considerable significance, but found defendant‟s assertions here incredible.”).

       Beyond Brooks‟s affirmation at the Rule 11 colloquy that he was satisfied with

Scott‟s advice and advocacy, the court found Brooks‟s allegations concerning Scott‟s

representation not persuasive for several reasons. At the hearing on Brooks‟s motion to

withdraw his plea, Scott recounted the steps she had taken on her client‟s behalf. Heeding

Brooks‟s instruction to prepare for trial, Scott moved to sever the two charges and to

suppress evidence seized at the time of Brooks‟s arrest. Although the court ultimately

denied both motions, it conducted a suppression hearing at which Scott vigorously argued

her client‟s position. Scott requested and was granted several continuances in order to

gather additional evidence, including an independent ballistics analysis, intended to


                                              9
bolster Brooks‟s defense at trial. And the court rejected Brooks‟s specious contention that

Scott‟s failure to develop either an alibi or a justification defense demonstrated a lack of

fidelity to his cause.6 Brooks eventually conceded Scott had simply informed him that

developing a defense to the charges was “going to be hard,” a reality the court attributed

to Brooks‟s clear culpability.

       As for Scott‟s allegedly erroneous sentencing advice, the court permissibly

accorded little weight to Brooks‟s assertion that Scott had counseled him to anticipate his

maximum sentencing exposure to be in line with the mandatory minimum of fifteen

years. Scott testified at length about her discussions with Brooks regarding how the

sentencing guidelines would likely apply were he to plead guilty, and the court found her

testimony credible.7 Nevertheless, because the court explicitly and accurately


6
  Although Brooks testified obliquely about possessing a potential alibi defense, he
admittedly never relayed any such information to Scott during her time as his attorney.
And, at Brooks‟s urging, Scott sent her investigator to speak with Brooks‟s landlord
about alleged threats and vandalism that might have served to underpin a justification
defense. The investigator‟s repeated attempts to locate the landlord proved fruitless, and
Scott called off the search when Brooks informed her the alleged incidents occurred more
than six months prior to his arrest. Although Brooks attempts to impugn Scott for failing
to pursue this defense more assiduously, Scott reasonably believed a justification defense
could not be predicated on such remote events and chose to allocate resources elsewhere.
See United States v. Paolello, 

, 540-41 (3d Cir. 1991) (adopting “a
restrictive view of the justification defense in the context of 18 U.S.C. § 922 charges” and
requiring the defendant to prove “he was under unlawful and present threat of death or
serious bodily injury” as one of the defense‟s essential elements); United States v. Alston,

, 96 n.7, 97 (3d Cir. 2008) (“Only in rare circumstances will anything but an
immediate emergency constitute a present threat. . . . The defendants who have been
granted the defense faced split-second decisions where their lives, or the lives of others,
were clearly at risk.”) (internal quotation marks omitted).
7
  Indeed, it is difficult to reconcile Brooks‟s willingness to rely on Scott‟s predictions
about his sentence with the skepticism he allegedly harbored about her reliability in all
other respects.

                                             10
admonished Brooks regarding his maximum potential exposure and the court‟s discretion

during the Rule 11 colloquy, Scott‟s alleged conjectures about Brooks‟s sentence were

legally “irrelevant.” United States v. Shedrick, 

, 299 (3d Cir. 2007); see also

United States v. Mustafa, 

, 492 (3d Cir. 2001) (“[A]ny alleged

misrepresentations that [the defendant‟s] former counsel may have made regarding

sentencing calculations were dispelled when [the defendant] was informed in open court

that there were no guarantees as to sentence, and that the court could sentence him to the

maximum.”).

       Required to set forth strong reasons for withdrawal, Brooks instead offered only

dubious allegations that were flatly rebutted by Scott. Having observed Brooks testify at

both hearings, the court declared it had “no doubt that at the time he entered his guilty

plea he did so with a full appreciation of the import of his actions, admitting all the facts

attendant to the elements of the crimes with which he was charged.” Brooks, 2010 U.S.

Dist. LEXIS 57650 at *12; see also See DiFederico v. Rolm Co., 

, 208 (3d

Cir. 2000) (“[T]he district court‟s findings involved credibility determinations which are

supported by the record and which we will not second-guess.”). Because Brooks failed to

proffer sufficiently strong reasons for permitting withdrawal of his plea, the court

properly found this factor weighed against granting his motion.

                                             III.

       Brooks has not carried his “substantial” burden of demonstrating a “fair and just

reason” for withdrawing his guilty plea. See 

. Therefore, we will

affirm the judgment of the District Court.

                                              11