F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 26 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
No. 02-1360
Plaintiff-Appellee, (D.C. No. 01-CR-250-N)
(D. Colo.)
v.
DARRYLE ANTHONY JOLLEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, McKAY and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
An indictment charged Mr. Jolley with four counts of distributing a
controlled substance and two counts of being a felon in possession of a gun. On
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
December 7, 2001, Defendant pled guilty to one count of violating the Armed
Career Criminal Act by possessing a firearm subsequent to three previous
convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1).
The Government agreed to dismiss the remaining five counts of the indictment at
sentencing. At the time of the plea, Defendant was represented by counsel.
On March 13, 2002, two days before the scheduled sentencing hearing,
Defendant filed a motion to withdraw his guilty plea pursuant to Federal Rule of
Criminal Procedure 32(e), arguing that new evidence had come to his attention
that would support an argument that his confession was procured through false
promises of leniency. He further claimed that after he entered into the plea
agreement he learned that a witness to the promises had been intimidated to
remain silent by one of the agents. He stated that “his decision with regard to his
plea would be different” in light of this information. Rec., Vol. 6, at 9. The
district court held a hearing at which Defendant was permitted to testify and to
produce evidence supporting his claims. Following the hearing, the district court
denied Defendant’s motion and sentenced him to serve 235 months in prison.
Defendant appeals to this court.
On appeal, Defendant claims that the district court erred in denying his
motion to withdraw his guilty plea. We review the district court’s denial of a
motion to withdraw a guilty plea for an abuse of discretion. Barker v. United
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States, 579 F.2d 1219, 1223 (10th Cir. 1978). A defendant does not have an
absolute right to withdraw his guilty plea prior to sentencing. Fed. R. Crim. P.
32(e); see also Mabry v. Johnson, 467 U.S. 504, 508-09 (1984). The defendant
has the burden of proving a “fair and just reason” to withdraw his guilty plea
pursuant to Rule 32(e). United States v. Burger, 964 F.2d 1065, 1070-71 (10th
Cir. 1992) (citation omitted).
We have articulated seven factors to be considered in our determination of
whether a defendant has met the burden of establishing “a fair and just reason”
for withdrawing his guilty plea. United States v. Black, 201 F.3d 1296, 1299-
1300 (10th Cir. 2000); see also United States v. Gordon, 4 F.3d 1567, 1572 (10th
Cir. 1993). These factors are:
(1) whether the defendant has asserted his innocence; (2) whether the
government will be prejudiced if the motion is granted; (3) whether the
defendant has delayed in filing the motion; (4) the inconvenience to the
court if the motion is granted; (5) the quality of the defendant’s assistance
of counsel; (6) whether the plea was knowing and voluntary; (7) whether
the granting of the motion would cause a waste of judicial resources.
Black, 201 F.3d at 1299-1300 (10th Cir. 2000).
Defendant’s argument that the district court failed to consider his legal
innocence is unsupported by the record. The district court considered
Defendant’s allegation that information came to his attention after he entered his
plea that might have assisted him in suppressing his confession. Our review of
the record reveals that the district court granted Defendant a hearing to establish
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this evidence, considered all of the evidence, and rejected Defendant’s argument
on the merits. After the hearing, the district court determined that Defendant was
unable to demonstrate that evidence existed in support of his claim that the
Government falsely promised leniency. Specifically, the witness to the alleged
unfilled promises indicated at the hearing that she would invoke the Fifth
Amendment if called to testify. Additionally, Defendant never asserted his
innocence. He was represented by counsel when he entered into the plea
agreement and he entered into the plea agreement freely and voluntarily. We
cannot find fault with the district court’s analysis of the other factors.
Therefore, in light of the Gordon factors and the facts of the instant case,
we hold that the district court did not abuse its discretion in denying Defendant’s
motion to withdraw his guilty plea.
The conviction and sentence are AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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