NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                        __________

                        No. 13-4585
                        ___________

              UNITED STATES OF AMERICA

                             v.

                    RAHEEM SPRUELL,
                     a/k/a Jahad Sprueill
                     a/k/a Jahad Tauheed
                    a/k/a DaShawn Harris

                    RAHEEM SPRUELL,
                          Appellant
                      ______________

   APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE DISTRICT OF NEW JERSEY
           (D.C. Cr. Action No. 11-cr-00758-001)
          District Judge: Honorable Claire C. Cecchi
                       ______________

          Submitted Under Third Circuit LAR 34.1(a)
                       June 23, 2014
                      ______________

Before: FUENTES, GREENAWAY, JR., NYGAARD, Circuit Judges.

                (Opinion Filed: July 3, 2014)

                      ______________

                         OPINION
                      ______________
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GREENAWAY, JR., Circuit Judge.

       After the pleading guilty to the charge of unlawful possession of a firearm as

convicted felon, Spruell filed a pro se motion to withdraw his guilty plea before

sentencing. The District Court denied the motion. On appeal, Spruell argues that the

case should be remanded for a new hearing on the motion to withdraw guilty plea. For

the foregoing reasons, we affirm the District Court’s order.



I. FACTUAL BACKGROUND

       Because we write primarily for the parties who are familiar with the facts and

procedural history, we recount only the essential facts.

       On January 26, 2011, police officers responded to a report of a robbery in Newark,

New Jersey. After arriving at the scene, the officers arrested Spruell for possession of a

gun. In the process of arresting him, the officers discovered 115 zip lock bags containing

a total of 7.69 grams of cocaine, as well as $208 in cash.

       By a superseding indictment filed on August 7, 2012, Spruell was charged, in

Count One, with being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1). Count Two charged Spruell with possession and intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1). In exchange for the dismissal of the Count Two

drug distribution charge, Spruell agreed to plead guilty to the felon in possession of a

firearm charge.


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       On October 2, 2013, Spruell filed a pro se motion to withdraw his guilty plea.

Spruell asserted that at some point after the guilty plea hearing, defense counsel showed

Spruell a key witness statement obtained by prior counsel that allegedly contradicted the

police officer’s version of the January 26, 2011 events. Spruell filed a motion to

withdraw the guilty plea after seeing the witness statement. On October 8, 2013, the

government filed a sentencing memorandum arguing against Spruell’s motion to

withdraw the guilty plea.

       At a sentencing hearing conducted on October 17, 2013, defense counsel made it

clear that he neither filed nor advised Spruell to file a motion seeking to withdraw the

guilty plea; however, counsel did state that he would weigh in on the matter, if requested,

by the court. After Spruell requested to argue his own motion, the government warned

Spruell, in open court, that anything he said could be used against him in the current or a

future prosecution. Spruell argued his own motion. After determining that the witness

statement did not undermine the credibility of Spruell or contradict the factual scenario in

the P.S.R., the District Court denied Spruell’s request to withdraw his guilty plea. The

Court also agreed with the government that Spruell benefitted from a favorable plea

agreement.

       At the conclusion of the sentencing hearing, the District Court imposed a sentence

of 110 months’ imprisonment. This timely appeal followed.




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II. JURISDICTION

       The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.



III. ANALYSIS

       Spruell seeks an order directing the district court to conduct a new hearing on the

motion to withdraw guilty plea. While conceding that he was represented by counsel,

Spruell argues that his Sixth Amendment right to counsel was violated when counsel

stood aside while defendant argued his motion, pro se.

       “When determining whether a suspect’s Sixth Amendment right to counsel has

been violated, our standard of review is plenary.” United States v. Tyler, 

,

156 (3d Cir. 1998) (citing Flamer v. Delaware, 

, 720 (3d Cir. 1995)). As

interpreted by the Supreme Court, the Sixth Amendment’s guarantee that in all criminal

prosecutions the accused shall enjoy the right to have the Assistance of Counsel for his

defense applies to every “critical stage” in a criminal prosecution. See, e.g., Gerstein v.

Pugh, 

, 121-23 (1975); Coleman v. Alabama, 

, 9 (1970). “At

least absent unusual circumstances, a hearing on a motion to withdraw a guilty plea is

sufficiently important in a federal criminal prosecution that the Sixth Amendment

requires the presence of counsel.” United States v. Crowley, 

, 1069-70 (3d

Cir. 1976). If we find that a Sixth Amendment right was violated, we determine whether


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the violation was “harmless beyond a reasonable doubt under the circumstances shown in

this record.” 

       We need not decide whether Spruell arguing his plea-withdrawal motion pro se,

albeit with the presence of counsel at the sentencing hearing, violated his Sixth

Amendment right. As was true in United States v. Crowley, the record here makes clear

that “it is extremely unlikely that counsel would have been any more effective than the

defendant himself in convincing the district court to exercise its discretion to permit

withdrawal of the plea.” 

, 1071 (3d Cir. 1976).

       Here, counsel would have had to persuade the District Court that the witness

statement furnished to Spruell provided a “fair and just reason” for withdrawing Spruell’s

guilty plea. Fed. R. Crim. P. 11(d)(2)(B). Upon review of the record, we are satisfied

that the District Court would not have permitted withdrawal of the plea. First, a claim for

actual innocence could not have been made by any reasonable counsel. (See App. 40-

41.) Second, no credible evidence of coercion has been adduced, and the government’s

plea offer was generous. (See App. 18-21, 40-44.) Finally, the District Court’s

independent assessment of the witness statement makes it apparent that even with the aid

of counsel, the outcome would have been the same. (See App. 80 (“I don’t see how this

particular statement impacts or undermines the credibility of this defendant or contradicts

what has already been prepared in the P.S.R.”).) Under these circumstances, there is no

reason to disturb the District Court’s disposition of this case on the basis of an alleged

Sixth Amendment violation. Cf. Strickland v. Washington, 

, 689 (1984)
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(“Because of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.”).

       Therefore, the alleged absence of counsel was harmless beyond a reasonable doubt

under the circumstances shown in this record.



IV. CONCLUSION

       For the foregoing reasons, we affirm the order of the District Court.




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