UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11046
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
UNDRELL AMBROSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CR-SS-T-23)
September 21, 1998
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Undrell Ambrose appeals his guilty plea conviction for
distribution of cocaine base. We affirm.
FACTS AND DISTRICT COURT PROCEEDINGS
A 47-count indictment charged Ambrose and numerous
codefendants with a variety of drug-trafficking offenses. Ambrose
was charged with conspiracy to distribute cocaine base and two
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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counts of distribution of cocaine base.
On June 16, 1997, the morning trial was set to begin, Ambrose
pleaded guilty to one of the distribution charges (violation of 21
U.S.C. § 841(a)(1)), pursuant to a written plea agreement. The
charge, as indicted, included the allegation that the sale took
place in the vicinity of a school, but that aspect of the count was
deleted at the guilty plea hearing.
The factual resume, signed by Ambrose and submitted in support
of the plea, recited:
On November 21, 1996[,] an undercover officer and co-
defendant Chandra Pye traveled from Leonard, Texas[,] to
Greenville, Texas. Once they arrived they went to 1123
O’Neal Street. Pye went inside the residence, and a
short time later the defendant, UNDRELL AMBROSE[,]
arrived. The two then negotiated for the purchase of
crack cocaine. The defendant retrieved crack cocaine out
of the trunk of another vehicle and gave the cocaine base
to Pye. Pye in turn distributed the cocaine base to an
undercover officer.
According to the written plea agreement, there was “no
agreement as to what the sentence will be.” In a handwritten
footnote, the Government stated that it “recommends that any period
of incarceration does not exceed 3 years,” but noted that “[a]ll
parties agree that this recommendation is not binding on the
court.” Ambrose acknowledged that “this plea agreement does not
create any right to be sentenced within, or below, any particular
punishment range.” Further, the agreement stated that Ambrose
“shall cooperate with the Government, by giving truthful
and complete information and/or testimony concerning
[his] participation in and knowledge of criminal
activities. . . . A Motion for Downward Departure under
[U.S.S.G. §] 5K1.1 may be filed by the government if, and
only if, in the sole discretion of the United States
Attorney . . ., it is determined that [Ambrose] has
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rendered substantial assistance to the government in its
investigation and prosecution of others.”
At the guilty plea hearing, the Government reiterated its
recommendation that any period of incarceration not exceed three
years. Ambrose acknowledged that he had read the plea agreement,
discussed it with his attorney and that nobody had promised him
anything other than what was in the plea agreement.
On July 11, 1997, Ambrose filed a motion to withdraw his
guilty plea, alleging that Assistant United States Attorney
Jarrett lied to him on the morning of the plea, stating that
codefendants Jamie Perkins and Rodney Taylor would testify against
Ambrose when they had no intention of doing so. Ambrose attached
affidavits from Perkins and Taylor to support the allegations in
the motion.
On September 11, 1997, the district court conducted a hearing,
denied the motion and proceeded immediately with the sentencing
hearing. The district court sua sponte assessed an increase for
obstruction of justice based on a finding that Ambrose committed
perjury at the hearing on his motion to withdraw his plea when he
testified that he was innocent. Ambrose was sentenced to 136
months in prison and three years of supervised release.
DENIAL OF MOTION TO WITHDRAW GUILTY PLEA
A district court may allow a guilty plea to be withdrawn prior
to sentencing upon the showing of “any fair and just reason.”
FED.R.CRIM.P. 32(d). We will reverse the denial of a motion to
withdraw a guilty plea only for abuse of discretion. United States
v. Gaitan, 954 F.2d 1005 (5th Cir. 1992).
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Seven factors guide the decision to grant or deny such a
motion:
(1) whether the defendant has asserted his innocence; (2)
whether withdrawal would prejudice the Government; (3)
whether the defendant delayed in filing the motion and,
if so, the reason for the delay; (4) whether withdrawal
would substantially inconvenience the court; (5) whether
adequate assistance of counsel was available to the
defendant; (6) whether his plea was knowing and
voluntary; and (7) whether withdrawal would waste
judicial resources.
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)(citing
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)(the
“Carr factors”). No single factor or combination of factors
mandates a particular result. Instead, the district court should
make its determination based on the totality of circumstances. Id.
Ambrose contends that the district court abused its discretion
by denying his motion to withdraw his guilty plea because each of
the seven factors cited in United States v. Carr favor withdrawal
in his case.
(1) Whether the defendant has asserted his innocence
At the hearing on his withdrawal motion, Ambrose denied under
oath selling cocaine to Chandra Pye on November 21, 1996. This was
the same conduct, alleged in Count 20, to which he had earlier
pleaded guilty under oath. The district court, after hearing
Ambrose’s testimony, as well as various other fact witnesses called
by the government, determined that “Mr. Ambrose testified
truthfully in June [at the guilty plea hearing] and perjured
himself today.”
This court has held that a defendant’s assertion of actual
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innocence is insufficient to support a plea withdrawal under Carr
in the absence of evidence to support the assertion, since a
contrary rule would grant the defendant an inappropriate ability to
reverse his decision to plead guilty. United States v. Bond, 87
F.3d 695, 701 (5th Cir. 1996). Because there was no evidence to
support his assertion of innocence, this factor weighed in favor of
the Government, as the district court found.
(2) Whether withdrawal would prejudice the Government
The government asserted below that it would be prejudiced if
withdrawal were granted since it had expended “time, effort and
money . . . and released all of the witnesses and much of the
evidence is no longer available.” The district court determined
that the Government would not be prejudiced but would suffer only
minor inconvenience if the case proceeded to trial, because the
Government had been able to marshal several witnesses to testify
against Ambrose on short notice at the plea withdrawal hearing.
There is nothing in the record or in the positions of the parties
on appeal that call this ruling into question. This second factor
therefore weighs in favor of allowing the withdrawal.
(3) Whether the defendant delayed in filing the motion
Ambrose filed his motion to withdraw his guilty plea 25 days
after the plea was entered. In Carr, this court held that a 22-day
delay was excessive. Carr, 740 F.2d at 345. However, in Carr, the
motion to withdraw was filed only three days before sentencing.
Id. In Ambrose’s case, sentencing was not scheduled until almost
two months later. The district court did not mention this factor
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in its ruling. However, the Government concedes that Ambrose did
not unduly delay filing his withdrawal motion. This factor weighs
in favor of Ambrose.
(4) Whether withdrawal would inconvenience the court
The district court indicated that it had “no problem being
inconvenienced” by the withdrawal. Ambrose argues that the court’s
language amounted to a ruling that no substantial inconvenience
would inure to the court if Ambrose was allowed to withdraw his
guilty plea. The Government argues that the court’s later finding
concerning Ambrose’s guilt implies that the court would be
inconvenienced by a plea withdrawal because Ambrose was guilty.
However, the court made no finding of inconvenience and because
there is no information in the record about the court’s schedule,
we have no basis on which to find that a withdrawal would
inconvenience the court. This factor weighs in favor of Ambrose.
(5) Whether Ambrose had adequate assistance of counsel
The district court determined that Ambrose had received close
assistance of counsel. Ambrose now takes the position that he did
not have adequate assistance of counsel because the Government
misrepresented the truth to his attorney. He argues that when the
Government failed to provide truthful information to his counsel
concerning the availability of government witnesses, it prevented
his counsel from rendering effective assistance. Ambrose made no
such argument in the district court. Given the evidence in the
record supporting the district court’s finding and Ambrose’s
failure to argue his appellate theory below, we will not disturb
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the district court’s finding that this factor favors the
Government.
(6) Whether the plea was knowing and voluntary
Because a guilty plea involves the waiver of several
constitutional rights, it must be made intelligently and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). We
review the voluntariness of a defendant’s guilty plea de novo.
United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997).
A situation in which a defendant is induced by deception or
misrepresentation to enter a plea of guilty does not meet the
standard of voluntariness articulated by the Supreme Court and
renders the resulting plea involuntary. See id. at 389.
In denying Ambrose’s motion to withdraw his guilty plea, the
district court stated that “[t]he question . . . is did the
government overreach in leading [Ambrose] to believe that witnesses
will testify in the case when the probability of their testimony
was remote.” The court continued:
The court does believe that the prosecution did attempt
to, and quite possibly did create an atmosphere that
would pray [sic] on the mind of the defendant that was
going to trial. I certainly do not condone the
government’s indicating that it is calling witnesses that
it really had no actual probability to call, as there is
no testimony that any agreement had been made with the
witnesses for their testimony, nor that their attorneys
had ever agreed that they should testify in the case. So
I do not condone the actions of the prosecutor in this
case in that respect.
However, the district court noted that it was not unusual for
defendants to decide to plead guilty on the day of trial. Further,
the two witnesses who had been added to the list were not directly
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involved in the count to which Ambrose pleaded guilty, while two
other available witnesses -- Chandra Pye and the confidential
informant referenced in the factual resume -- had testified in an
earlier trial in which Ambrose’s co-defendants were convicted.
This led the district court to conclude that the two additional
witnesses did not produce an overwhelming compulsion for the
defendant to plead guilty when otherwise he would not have done so.
The court also considered the evidence offered at the hearing and
concluded that Ambrose was in fact guilty. Based on these
conclusions, the district court held that Ambrose’s guilty plea was
entered “freely, voluntarily and intelligently.”
Like the district court, we are concerned by the prosecution’s
overreaching. However, we agree with the district court’s
conclusions regarding the probable effect of the tactic.
We therefore conclude that this factor weighs in favor of the
Government.
(7) Whether withdrawal would waste judicial resources
The district made no finding on this factor except to say that
exonerating innocent defendants is never a waste of judicial
resources. The Government argues that, because the district court
concluded that Ambrose was in fact guilty, we should conclude that
further proceedings would waste judicial resources. However, we
conclude that this factor is neutral and does not weigh in favor of
either party.
CONCLUSION
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Three of the seven Carr factors weigh in favor of Ambrose,
three weigh in favor of the Government, and one is neutral.
Although it is a close question, we cannot say that the district
court abused its discretion in denying Ambrose’s motion to withdraw
his guilty plea. Further, we find the other issues raised by
Ambrose on appeal are without merit. We therefore affirm Ambrose’s
conviction and sentence.
AFFIRMED.
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