Filed: Nov. 23, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4937 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM HOWARD O’NEIL, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00088-LHT-1) Argued: September 30, 2009 Decided: November 23, 2009 Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan CURRIE, United States District Judge for the D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4937 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM HOWARD O’NEIL, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00088-LHT-1) Argued: September 30, 2009 Decided: November 23, 2009 Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan CURRIE, United States District Judge for the Di..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4937
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HOWARD O’NEIL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00088-LHT-1)
Argued: September 30, 2009 Decided: November 23, 2009
Before MOTZ and DUNCAN, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Motz and Judge Currie joined.
ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant. Donald David Gast, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
William Howard O’Neil, Jr., appeals his conviction and
sentence for bank robbery with a dangerous weapon in violation
of 18 U.S.C. § 2113(a), (d). In this appeal, O’Neil challenges
the district court’s order vacating a magistrate judge’s sua
sponte rescission of the acceptance of his guilty plea, and its
order upholding the validity of his Rule 11 hearing. For the
reasons that follow, we affirm.
I.
In July 2007 a man wearing a black wig robbed a bank in
Morganton, North Carolina. During the robbery, the man held
what appeared to be a real gun to the head of one of the
tellers. He ultimately fled in a white minivan. Some time
later, police officers observed a white minivan parked outside
the home of O’Neil’s mother. The officers obtained consent to
search the home and found a pellet gun during their search. The
police, however, did not arrest O’Neil at that time because he
did not match the description of the robber. Only after
watching a videotape of the robbery did the officers arrest
O’Neil.
A federal grand jury indicted O’Neil on October 1, 2007.
The indictment alleged that O’Neil committed a bank robbery in
violation of 18 U.S.C. § 2113(a), and that he assaulted a teller
2
with a dangerous weapon during the commission of the robbery in
violation of § 2113(d). The district court referred the matter
to a magistrate judge, who appointed counsel for O’Neil on
October 30, 2007. On December 26, 2007, the government filed a
plea agreement with the court in which O’Neil stipulated that
there was a factual basis for his guilty plea and agreed to
defer the factual-basis presentation required by Federal Rule of
Criminal Procedure 11(b)(3) until sentencing. 1 Then, on December
27, 2007, the magistrate judge held a Rule 11 hearing at which
O’Neil pleaded guilty. During this hearing, O’Neil stated that
he had committed the acts charged in the indictment, that his
plea was voluntary, and that he was satisfied with the
representation of his attorney. Despite these statements,
O’Neil later wrote a letter to the district judge complaining
about his attorney’s performance.
1
The relevant section of the plea agreement reads as
follows:
With the Court’s permission, the factual basis, as
required by Fed. R. Crim. P. 11(b)(3), will be
deferred until the time of sentencing. The defendant
stipulates that there is a factual basis for the plea
of guilty and that the Court may use the offense
conduct set out in the Presentence Report, except any
facts to which the defendant has objected, to
establish a factual basis for the defendant’s plea.
J.A. 13 (emphasis added).
3
As a result of the letter, the magistrate judge held a
status hearing on January 9, 2008. During that hearing, O’Neil
stated that he had been misled by counsel into pleading guilty
and that he lied at the Rule 11 hearing when he admitted to
committing the crimes charged. Counsel offered testimony
refuting O’Neil’s assertions regarding her performance. The
magistrate judge found that O’Neil’s complaints were baseless
but appointed a new attorney in an abundance of caution. On
January 22, 2008, during a second status hearing, the magistrate
judge asked O’Neil’s new attorney whether O’Neil wanted to
withdraw his guilty plea. The attorney responded that he
believed his client had some interest in doing so, but that he
needed to talk to him first. At that same hearing, before the
new counsel spoke with O’Neil, the magistrate judge rescinded
the acceptance of the plea sua sponte, based on his belief that
the plea could not stand after O’Neil repudiated his admission
of guilt.
The government challenged the magistrate judge’s decision
before the district court. The district court vacated it and
reinstated the guilty plea. In response, O’Neil moved the
district court to withdraw his guilty plea and requested de novo
review of the Rule 11 proceeding. The district court denied
O’Neil’s motion to withdraw the plea and upheld the validity of
the Rule 11 proceeding. This appeal followed.
4
II.
O’Neil argues that the magistrate judge properly vacated
his guilty plea because, after O’Neil repudiated his admission
of guilt, there was no longer a factual basis for the plea. He
further argues that the district court erred in failing to make
a determination that a sufficient factual basis existed for
acceptance of the guilty plea when reviewing the Rule 11
proceeding de novo. We analyze each of O’Neil’s contentions in
turn.
A.
We first consider the district court’s order vacating the
magistrate judge’s sua sponte decision and reinstating O’Neil’s
guilty plea. A district court reviews a magistrate judge’s Rule
11 decisions de novo. United States v. Benton, 523 F.3d 424,
432 (4th Cir. 2008). We review for abuse of discretion a
district court’s decision regarding whether to allow a guilty
plea to stand. See
id. at 434-35 (reviewing for abuse of
discretion a district court’s finding that there was no fair and
just reason to vacate a guilty plea). “A district court abuses
its discretion when it acts arbitrarily or irrationally, fails
to consider judicially recognized factors constraining its
exercise of discretion, relies on erroneous factual or legal
premises, or commits an error of law.” United States v.
5
Delfino, 510 F.3d 468, 470 (4th Cir. 2007). O’Neil argues that
the district court abused its discretion when it found the
magistrate judge’s vacatur to be improper and beyond the
magistrate’s authority. O’Neil asserts that, because his
repudiation eliminated the factual basis for the plea, the
magistrate judge’s vacatur was justified. We disagree for the
following reasons.
First, district courts have broad authority to overturn any
Rule 11 decision made by a magistrate judge. This authority is
firmly rooted in the statute authorizing magistrate judges’
functions. “The Federal Magistrates Act grants district courts
authority to assign magistrates certain described functions as
well as ‘such additional duties as are not inconsistent with the
Constitution and laws of the United States.’” Peretz v. United
States, 501 U.S. 923, 924 (1991) (quoting 28 U.S.C.
§ 636(b)(3)). We have found that “conducting a plea colloquy
could be considered an ‘additional duty’ within the meaning of
28 U.S.C. § 636(b)(3).”
Benton, 523 F.3d at 431. We have also
noted “the litigants’ right to seek de novo review of the
[magistrate judge’s] Rule 11 proceedings as a matter of right.”
Id. (emphasis omitted). Indeed, as the Supreme Court has
explained, the reason why delegation of certain proceedings to
magistrate judges does not run afoul of the Constitution is that
“the entire process” before the magistrate judge “takes place
6
under the district court’s total control and jurisdiction.”
Peretz, 501 U.S. at 937 (citing United States v. Raddatz,
447
U.S. 667, 681 (1980)). See also
Benton, 523 F.3d at 430. The
Court has further explained the broad discretion of the district
judge with regard to proceedings before a magistrate judge as
follows:
The judge may initially decline to refer any matter to
a magistrate. When a matter is referred, the judge
may freely reject the magistrate’s recommendation. He
may rehear the evidence in whole or in part. He may
call for additional findings or otherwise “recommit
the matter to the magistrate with instructions.”
Peretz, 501 U.S. at 938 (quoting
Raddatz, 447 U.S. at 685
(Blackmun, J., concurring) (quoting 28 U.S.C. § 636(b)(1)).
Accordingly, the district court here had full authority to
overturn the magistrate judge’s sua sponte decision to rescind
the acceptance of the guilty plea.
Second, the district court was justified in overturning the
plea rescission on these facts because the magistrate judge’s
decision was based on incorrect procedural grounds. The only
reason the magistrate judge vacated the plea was that he
believed he was obligated to do so once the factual basis for
the plea disappeared as a result of O’Neil’s repudiation. This
view misinterprets the requirements of Rule 11. Under Rule
11(b)(3), “[b]efore entering judgment on a guilty plea, the
court must determine that there is a factual basis for the
7
plea.” Fed. R. Crim. Pro. 11(b)(3). As we have previously
explained:
The requirement to find a factual basis is designed to
“protect a defendant who is in the position of
pleading voluntarily with an understanding of the
nature of the charge but without realizing that his
conduct does not actually fall within the charge.”
United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)
(quoting Fed. R. Crim. Pro. 11 advisory committee’s note).
However, “[b]ecause judgment is not entered until after
sentencing, a court may defer the finding of a factual basis for
the plea until [that time].” United States v. Martinez,
277
F.3d 517, 522 n.4 (4th Cir. 2002). 2 This court has specifically
explained that the district court “is not required to make such
a determination at the outset of the Rule 11 proceedings; it may
defer its inquiry until sentencing.”
Id. at 531. See also
United States v. Ketchum,
550 F.3d 363, 367 (4th Cir. 2008).
Therefore, the district court did not abuse its discretion in
finding that, although O’Neil repudiated his admission of guilt,
the plea did not have to be vacated at that point.
2
Martinez cited a previous version of Rule 11 that stated:
“[N]otwithstanding the acceptance of a plea of guilty, the court
should not enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis for
the plea.” 277 F.3d 517, 522 n.4. However, Martinez’s analysis
applies with equal force to the new wording of Rule 11. See
United States v. Ketchum,
550 F.3d 363, 266-67 (4th Cir. 2008).
8
Third, the district court was correct to conclude that the
magistrate judge had no legal authority to vacate the plea. We
have explained that “[b]ecause it is essential to an orderly
working of the criminal justice system that guilty pleas
tendered and accepted in conformity with Rule 11 can be presumed
final, it is the defendant’s burden to demonstrate that [he]
should be permitted to withdraw [his] plea.” 3 United States v.
Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995). At the time of the
magistrate judge’s decision, O’Neil had not moved to withdraw
the plea. In fact, when asked whether O’Neil wanted to withdraw
the plea, counsel responded that he believed his client had some
interest in doing so, but that he needed to talk to him first.
Not only had O’Neil not met his burden of justifying withdrawal
of the plea at the time of vacatur, it was not even clear that
he wanted to withdraw the plea at all. The magistrate judge
nonetheless proceeded to vacate the plea because, thinking it
improper to allow the plea to stand without a factual basis, he
concluded that such a result was “fair and just.” J.A. 61-62.
3
We note that O’Neil does not challenge the propriety of
any other aspect of the original Rule 11 proceeding, during
which he unequivocally admitted his guilt. In fact, O’Neil
concedes that the district court “properly analyzed” the issues
of “whether the proceeding ensured that the defendant was
competent, and that his plea was knowingly and voluntarily
entered.” Appellant’s Br. at 10-11. O’Neil’s only argument is
that the factual basis for the plea disappeared once he
repudiated his admission of guilt.
9
As we discussed above, the magistrate judge only has such
authority as the district court delegates to him. See Peretz,
501 U.S. at 924 (quoting 28 U.S.C. § 636(b)(3)). Although the
magistrate judge was authorized to conduct the plea hearing,
there has been no showing he was ever authorized to vacate an
existing plea. Given the presumption of finality that attaches
to a guilty plea, and absent any clear delegation of authority
from the district court to the magistrate judge to vacate an
existing plea, the district court was correct to hold that the
magistrate judge exceeded his authority.
B.
O’Neil further argues that the district court erred in not
evaluating whether a factual basis for the plea was established
at the time of the Rule 11 hearing. 4 He asserts as follows:
4
In reviewing the Rule 11 proceeding de novo, the role of
the district judge is not to conduct the proceeding anew. Such
a rule would create a serious risk of gamesmanship in the
system. It would incentivize defendants to plead guilty before
a magistrate judge, see what benefit they could derive from
doing so, and, if they were unsatisfied with the result, simply
request a new hearing before the district judge and plead not
guilty. That would clearly obliterate the “strong presumption
that the plea is final and binding.” United States v. Bowman,
348 F.3d 408, 414 (4th Cir. 2003). Furthermore, this court has
found that “for the purposes of Rule 11 . . . district judges
retain the authority to review the magistrate judge's actions de
novo.”
Benton, 523 F.3d at 429. Therefore it is clear that, in
conducting a de novo review, the district judge’s role is only
(Continued)
10
The defendant acknowledges that the District Court
ostensibly examined the factual basis at the time of
the sentencing. 5 However, the defendant does not
concede that this later finding of a factual basis
alleviates the District Court from its[] obligations
under Osborne to determine if a sufficient factual
basis existed at the time of the plea hearing to
support accepting the guilty plea. 6
Appellant’s Br. at 11 (footnotes added and citation omitted)
(referencing United States v. Osborne, 345 F.3d 281 (4th Cir.
2003)). This argument is without merit. As explained above, a
court is not required to establish a factual basis at the time
of the plea hearing. See
Martinez, 277 F.3d at 531; Ketchum,
to determine whether the Rule 11 hearing was proper at the time
it was conducted.
5
Although the district court acted within the scope of its
authority, we think it appropriate to sound a cautionary note
about the process involved for future reference. While O’Neil
stipulated to deferring the factual basis at the plea hearing
until sentencing--and even stipulated to the sufficiency of the
facts set out in a presentence report that had yet to be
prepared--his attorney stated that O’Neil declined to stipulate
to the factual basis at sentencing. The mere stipulation in the
plea agreement, without any actual facts being referenced or
agreed upon, would probably not have sufficed at sentencing over
O’Neil’s objection. Here, we can rely on the fact, set forth in
the PSR and not objected to, that O’Neil was plainly indicated
on the bank videotape. In the future, however, reference to the
facts supporting the factual basis to which the parties
stipulated at the Rule 11 hearing would be helpful should a
challenge arise.
6
Nothing in Osborne, the case referenced by O’Neil in the
paragraph quoted above, suggests otherwise. Osborne simply
stands for the proposition that a de novo review by the district
court of a magistrate judge’s Rule 11 proceeding is not
constitutionally required unless it is specifically requested by
the litigants. Osborne, 345 F.3d at 290.
11
550 F.3d at 367. Instead, it can defer its inquiry until the
time of sentencing.
Id. In fact, the parties stipulated to the
deferral of the factual-basis inquiry in the plea agreement
filed with the court prior to the initial Rule 11 hearing.
Accordingly, because the factual basis inquiry for a guilty
plea can be and indeed was properly deferred until sentencing,
the district court did not err in failing to determine whether
such a basis had been established at the time of the plea
hearing.
C.
Finally, we turn to the denial of O’Neil’s motion to
withdraw his guilty plea. O’Neil does not directly challenge
that decision, and indeed attempted to distance himself from the
issue at oral argument. In his brief, however, O’Neil suggests
that, in reviewing the motion to withdraw the plea, the district
court was responsible for determining whether a factual basis
existed for it. We therefore address the issue in an abundance
of caution.
As explained above, it is well settled that, when a
defendant moves to withdraw a plea, he bears the burden of
establishing a fair and just reason for the withdrawal. Bowman,
348 F.3d at 413-14. See also Fed. R. Crim. Pro. 11(d)(2)(B).
O’Neil has made no attempt to do so, either before the
12
magistrate judge, the district court, or here. Our independent
review also reveals a failure of proof as to this issue.
We have explained that “[a] defendant has no ‘absolute
right’ to withdraw a guilty plea, and the district court has
discretion to decide whether a ‘fair and just reason’ exists
upon which to grant a withdrawal.” Bowman, 348 F.3d at 413
(quoting United States v. Ubakanma,
215 F.3d 421, 424 (4th Cir.
2000)). Moreover,
when a district court considers the plea withdrawal
motion, “‘the inquiry is ordinarily confined to
whether the underlying plea was both counseled and
voluntary’ . . . . A voluntary and intelligent plea
of guilty ‘is an admission of all the elements of a
formal criminal charge,’ . . . and constitutes an
admission of all ‘material facts alleged in the
charge.’”
Bowman, 348 F.3d at 414 (quoting United States v. Willis,
992
F.2d 489, 490 (4th Cir. 1993)) (alteration in original).
Therefore, “a properly conducted Rule 11 guilty plea colloquy
leaves a defendant with a very limited basis upon which to have
his plea withdrawn.”
Id.
In determining whether the defendant has met his burden of
establishing the “fair and just reason” for the withdrawal,
courts consider various factors, including:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
13
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The
Moore factors “that speak most straightforwardly to the question
whether the movant has a fair and just reason” to withdraw the
plea “are the first, second, and fourth.”
Sparks, 67 F.3d at
1154. The rest “are better understood as countervailing
considerations that establish how heavily the presumption should
weigh in any given case.”
Id. O’Neil only ever raised,
implicitly, factors one, two, and four before the magistrate
judge and the district court.
With regard to the first factor, O’Neil argued before the
magistrate judge that he would not have pleaded guilty but for
the fact that his first attorney misled him. In general, “[a]
defendant who presents a reason for withdrawing his plea that
contradicts the answers he gave at a Rule 11 hearing faces an
uphill battle in persuading the judge that his purported reason
for withdrawing his plea is ‘fair and just.’” United States v.
Trussel, 961 F.2d 685, 690 (7th Cir. 1992). See also United
States v. Wells, No. 94-5666,
1996 U.S. App. LEXIS 7600, at *14
(4th Cir. Apr. 12, 1996). In the present case, during the
initial Rule 11 hearing, O’Neil stated that he was “entirely
satisfied” with his attorney. J.A. 91-92. He has failed to
14
establish, on the basis of any record evidence, that his former
attorney actually misled him; instead, he simply asks us to
accept his allegation. 7 The magistrate judge found that O’Neil’s
allegations about his attorney were “baseless,” J.A. 49, and
explained that his decision to grant new counsel was “not due to
anything that [counsel] did,” J.A. 42. The magistrate judge
emphasized that his counsel had “gone over and above what any
lawyer would do . . . to represent a client.” J.A. 42. We will
not allow the first Moore factor to turn on a litigant’s wholly
unsupported bare assertion, particularly when it is adverse to
an existing finding made by a judge who administered the
proceeding and who had the opportunity to evaluate counsel’s
performance. We therefore find that the first Moore factor
counsels against permitting withdrawal of the plea.
In order to satisfy the second Moore factor, a defendant
“must do more than just demonstrate that [he] had a bona fide
7
O’Neil argued before the magistrate judge that his counsel
misled him into pleading guilty in “the way she explained about
the jury” to him, J.A. 202, and “wasn’t truthful to [him] about
her investigation,” J.A. 200. His counsel explained her
interactions with O’Neil and explained why her statements to him
had not been misleading. The magistrate judge found O’Neil’s
accusations to be unfounded. The record supports this finding
and there is therefore no reason to disturb the magistrate
judge’s credibility determination. See Columbus-Am. Discovery
Group v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995)
(“Absent extraordinary circumstances, we will not disturb a
fact-finder’s credibility determinations.”). Therefore, for our
purposes, O’Neil did not successfully establish that he was
misled by his counsel.
15
belief that [his] actions were lawful[;] [he] must show that
such a belief would translate into a credible assertion of legal
innocence.” Sparks, 67 F.3d at 1153. Here, O’Neil never
explained his assertion of innocence, much less established that
his belief of innocence was legally justified. A defendant’s
bare allegation of innocence does not, without more, satisfy the
second Moore factor. See United States v. Cray,
47 F.3d 1203,
1209 (D.C. Cir. 1995) (“A defendant appealing the denial of his
motion to withdraw a guilty plea . . . must do more than make a
general denial [of guilt].”). We thus find that O’Neil has not
satisfied the second Moore factor.
With regard to the fourth Moore factor, O’Neil must show:
“(1) that his counsel’s performance ‘fell below an objective
standard of reasonableness’ and (2) that ‘there [was] a
reasonable probability that, but for counsel’s error, he would
not have pleaded guilty and would have insisted on going to
trial.’” United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.
1989) (quoting Hill v. Lockhart,
474 U.S. 52, 57 (1985))
(alteration in original). As explained above, O’Neil showed
neither. The magistrate judge found O’Neil’s complaints
regarding counsel to be baseless and found that counsel more
than adequately represented him. There is no other evidence in
the record that his counsel’s performance “fell below an
16
objective standard of reasonableness” or that she misled him
into pleading guilty. Bowman, 348 F.3d at 416.
In sum, O’Neil did not successfully establish any of the
Moore factors or show any “fair and just” reason for the
withdrawal of his plea before the magistrate judge or before the
district court. We thus find that the district court did not
err in denying O’Neil’s motion to withdraw his guilty plea.
III.
Accordingly, for the reasons set forth above, we affirm the
district court’s opinion overturning the magistrate judge’s sua
sponte vacatur of the guilty plea, its finding that the Rule 11
proceeding was proper, and its denial of O’Neil’s motion to
withdraw the plea.
AFFIRMED
17
