FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30108
v. DC No. CR 07-
GLEN RAY BRIGGS, 2063 LRS
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30111
v. DC No. CR 07-
GLEN RAY BRIGGS, 2114 LRS
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30115
v. DC No.
GLEN RAY BRIGGS, CR 07-2066 LRS
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-30116
Plaintiff-Appellee,
v. DC No. CR 07-
2065 LRS
GLEN RAY BRIGGS,
OPINION
Defendant-Appellant.
16473
16474 UNITED STATES v. BRIGGS
Appeals from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted
March 4, 2010—Seattle, Washington
Filed September 27, 2010
Before: A. Wallace Tashima, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
16476 UNITED STATES v. BRIGGS
COUNSEL
James A. Goeke, Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.
Edwin F. Alden, Kennewick, Washington, for the defendant-
appellant.
UNITED STATES v. BRIGGS 16477
OPINION
TASHIMA, Circuit Judge:
In April 2008, Glen Briggs pled guilty to a host of drug-
related charges. Six months, a new lawyer, and a change of
heart later, Briggs filed a motion to withdraw his plea of
guilty. The district court denied the motion and eventually
sentenced Briggs to 324 months’ imprisonment. Briggs timely
appealed. We have jurisdiction pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. We affirm Briggs’ convic-
tion, but vacate his sentence and remand for resentencing.
I.
A.
In early 2007, based on a referral from local police in Yak-
ima, Washington, the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”) began investigating Briggs for traf-
ficking in drugs and weapons. Acting undercover, ATF Spe-
cial Agent Eric Floyd succeeded in making a number of
methamphetamine purchases from Briggs. Floyd also indi-
cated that he wanted to purchase guns from Briggs. Although
Briggs indicated his willingness to sell guns, no sales ever
materialized.
During the course of its investigation, ATF began to sus-
pect that Briggs was involved in a string of home invasion
robberies in the Yakima area. It therefore decided to stage a
“reverse sting” operation. At a meeting with Briggs on Febru-
ary 28, 2007, Floyd floated the idea of robbing a “stash
house” in Tacoma. According to Floyd, if they timed it right,
the house would contain at least twenty kilograms of cocaine
and ten pounds of methamphetamine. The stash house and
drugs were, of course, entirely fictional. Nonetheless, Briggs
immediately expressed his desire to be included in the job. He
told Floyd that he had “the hardest working crew in town”
16478 UNITED STATES v. BRIGGS
and that they “do this all the time.” The two agreed to discuss
plans for the operation at a later date.
A month later, on March 28, 2007, Briggs and Agent Floyd
met in Michael’s Allstar Tavern, a bar in Yakima, where they
were joined by Briggs’ brother Michael and Matt Steadman,
an undercover member of the Yakima Sheriff’s Office.1 The
group discussed the robbery in general terms, with each per-
son at the meeting stating that he wanted to participate. The
robbery was eventually set for April 19, 2007. On the morn-
ing of that day, Floyd met Briggs and his brother at a Motel
6 and told them he had a van ready to go to Tacoma. Briggs,
moving slowly from an apparent late night of drinking, told
Floyd he had to “pick up his guys.” Over the next few hours,
Floyd called Briggs repeatedly, telling him to hurry up and
encouraging him to leave people behind so they could get on
the road. Briggs refused, telling Floyd that he was waiting for
someone to get out of the shower. Briggs claimed that this
person “had access to the guns” that they needed for the rob-
bery.
Briggs and his brother eventually returned to the Motel 6
with their co-defendant, Julian Mora, in the car. They met
with Floyd at the van, and indicated that they were ready to
go. Michael Briggs, at his brother’s request, returned to his
car and retrieved a bulletproof vest. Floyd then told the defen-
dants that if they “wanted to go ahead, to get in the van.”
After the three entered the van, they were arrested by an ATF
SWAT team. When they were arrested, none of the defen-
dants had any guns on them, and no guns were ever recovered
in connection with the conspiracy.
1
Gabriel Vargas also attended that meeting, but he does not appear to
have participated further in the conspiracy and was never indicted.
UNITED STATES v. BRIGGS 16479
B.
Briggs was ultimately charged in four separate indictments
containing a total of eight counts. The two most serious
counts related to the conspiracy to rob the fictional stash
house: Briggs was charged with conspiracy to possess with
intent to distribute cocaine and methamphetamine and con-
spiracy to possess a firearm in connection with a drug traf-
ficking crime. Of the remaining six counts, four charged
Briggs with completed sales of methamphetamine, and two
charged him with conspiracy to escape and attempted escape
from federal prison.
On April 6, 2008, Briggs entered into a consolidated plea
agreement through which he pled guilty to all eight of the
above counts. Briggs’ plea agreement specified that he would
receive a minimum sentence of ten years in prison pursuant
to 21 U.S.C. § 841(b)(1)(A), but made no further representa-
tions regarding his sentence. The next day, the district court
held a change of plea hearing. After conducting its colloquy,
the court found that Briggs’ plea was knowing, intelligent,
and voluntary, and accepted his guilty plea to all charges.
Six months later, Briggs, represented by new counsel, filed
a motion to withdraw his guilty plea. The primary basis for
the motion was that Briggs “suffers from undetermined psy-
chological problems and . . . did not understand and was not
capable of understanding the plea agreement in this matter.”
The motion also claimed that the plea agreement “seriously
overstate[d]” Briggs’ criminal conduct. The court, finding that
Briggs had understood his plea at the time it was made and
could point to no intervening reason for his change of heart,
denied his request.
Briggs was thereafter sentenced to serve a total of 324
months’ imprisonment, a term at the bottom of his Guidelines
range. Briggs timely appealed.
16480 UNITED STATES v. BRIGGS
II.
We review the district court’s denial of Briggs’ motion to
withdraw his guilty plea for abuse of discretion. United States
v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009). We also
review the district court’s sentencing decisions for abuse of
discretion. Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). We review Briggs’ overall sentence for reasonableness,
and will set aside his sentence only if it is procedurally erro-
neous or substantively unreasonable. See Gall, 552 U.S. at 46;
Carty, 520 F.3d at 993.
III.
Briggs challenges both the denial of his motion to withdraw
his guilty plea and his sentence. We conclude that the district
court did not abuse its discretion when it denied Briggs’
motion to withdraw his guilty plea. We therefore affirm his
conviction. We also conclude, however, that Briggs’ sentence
was procedurally flawed. Accordingly, we vacate his sentence
and remand for resentencing.
A.
[1] In order to withdraw his guilty plea, Briggs bore the
burden of establishing that a “fair and just reason” existed for
the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). This standard
“is generous and must be applied liberally.” Ensminger, 567
F.3d at 590. We have previously held that fair and just rea-
sons include “inadequate Rule 11 plea colloquies, newly dis-
covered evidence, intervening circumstances, or any other
reason for withdrawing the plea that did not exist when the
defendant entered his plea.” Id. (quoting United States v.
Jones, 472 F.3d 1136, 1141 (9th Cir. 2007)) (internal quota-
tion marks omitted).
[2] We do not find any of the reasons Briggs has provided
compelling enough to make the denial of his motion an abuse
UNITED STATES v. BRIGGS 16481
of discretion. Briggs’ primary reason for seeking to withdraw
his guilty plea was that he did not understand the conse-
quences of his plea agreement at the time of his change of
plea hearing. He claimed that his lack of access to his attor-
ney, who lived approximately 250 miles away from where he
was incarcerated, and “undetermined psychological prob-
lems” rendered him incapable of understanding the agree-
ment.
[3] Our review of the record, however, has uncovered no
evidence that Briggs was incapable of understanding his
guilty plea. Although he has an IQ of 70, a psychological
evaluation found that he had “the capacity to make a knowing
decision” about his plea. In fact, Briggs discussed in detail
with the psychologist his own calculation of the sentence he
faced, the good-behavior time he expected to accrue, and the
ultimate period of incarceration that would result. Contrary to
Briggs’ assertions, his understanding of the consequences of
his guilty plea appears to have been quite sophisticated.
[4] The transcript of the plea colloquy confirms that Briggs
understood the plea agreement. He responded to the district
court’s questions and asked questions of his own when he did
not understand the point the district court made. He also
admitted to the factual allegations in the plea agreement, and
indicated that he was satisfied with his lawyer’s representa-
tion. We take the district court’s detailed colloquy with Briggs
as strong evidence that Briggs understood the meaning of his
actions. See United States v. Ross, 511 F.3d 1233, 1236 (9th
Cir. 2008) (“Statements made by a defendant during a guilty
plea hearing carry a strong presumption of veracity in subse-
quent proceedings attacking the plea.”).
[5] Briggs’ true complaint is not that he lacked the capac-
ity to understand his guilty plea, but that he misunderstood the
severity of the sentence that he faced. Briggs contends that he
expected to receive a sentence of approximately 200 months’
imprisonment when he entered his guilty plea. It was not until
16482 UNITED STATES v. BRIGGS
the Pre-Sentence Report calculated a Guidelines range of 360
months to life that he realized he faced a sentence nearly
twice as long as the one he expected.
[6] We have previously expressed skepticism at the propo-
sition that a defendant may change his plea solely because he
underestimated the severity of the sentence he faced. See Shah
v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“Nor
do we believe that fear of receiving a harsh sentence, standing
alone, constitutes a ‘fair and just’ reason to withdraw a plea,
even if counsel’s initial advice as to length of plea turned out
to be inaccurate.”). While we have on occasion allowed a
defendant to change his plea for such a reason, we have done
so only in exceptional circumstances. See United States v.
Davis, 428 F.3d 802, 805-08 (9th Cir. 2005) (allowing with-
drawal of guilty plea where defendant’s counsel “grossly mis-
characterized” the defendant’s possible sentence by telling
him he was likely to get probation, rather than the eight-years’
imprisonment the government was seeking).
[7] Briggs’ case is of a different nature than Davis. He
acknowledges that he expected a sentence in the range of 200
months at the time he pled guilty. He was therefore aware that
he faced a substantial term of incarceration. Further, while he
made conclusory allegations of inadequate legal advice before
the district court, he failed to substantiate those allegations in
any way. Accordingly, we conclude that the district court did
not abuse its discretion in denying Briggs’ motion. No inter-
vening event occurred that would constitute a “fair and just”
reason for Briggs’ change of heart. To the contrary, it appears
that Briggs only wanted to change his plea once he was face-
to-face with the full consequences of his conduct.2
2
We also reject Briggs’ contention that the plea agreement “seriously
overstates” his criminal conduct. His brother was convicted by a jury of
identical charges, and it is undisputed that Briggs, as the ringleader of the
conspiracy, was far more culpable for the crimes they committed.
UNITED STATES v. BRIGGS 16483
B.
[8] Briggs also challenges the 324-month sentence he
received following his guilty plea. He first contends that the
government engaged in “sentencing entrapment.” Sentencing
entrapment occurs where “a defendant, although predisposed
to commit a minor or lesser offense, is entrapped in commit-
ting a greater offense subject to greater punishment.” United
States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). In those
cases where sentencing entrapment occurs, the amount of
drugs used in calculating the defendant’s sentence should be
reduced by the amount that “flow[s] from [the] entrapment.”
United States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995);
see also U.S.S.G. § 2D1.1, app. n.12 (2007).
[9] Briggs’ claim of sentencing entrapment is unusual.
Typically, sentencing entrapment occurs when a government
agent convinces a drug dealer to purchase or sell more drugs
than he is otherwise inclined to deal in. See, e.g., United
States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009); United
States v. Riewe, 165 F.3d 727, 728-29 (9th Cir. 1999) (per
curiam); Naranjo, 52 F.3d at 249-50; Staufer, 38 F.3d at
1104-08; see also United States v. Parrilla, 114 F.3d 124,
126-29 (9th Cir. 1997) (finding that the defendant may have
been entrapped into possessing a gun during a drug trafficking
crime where government agent proposed trading the gun for
drugs). Briggs does not argue that the stash house contained
more drugs than he wanted; in fact, the evidence against him
suggests he was enthusiastic about the large quantity of drugs
the stash house purportedly contained. Instead, Briggs argues
that the only reason the government set the amount of drugs
at such a high level was to impact his sentence.
[10] We do not disagree with the theory behind Briggs’
argument. In fictional stash house operations like the one at
issue here, the government has virtually unfettered ability to
inflate the amount of drugs supposedly in the house and
thereby obtain a greater sentence for the defendant. In fact,
16484 UNITED STATES v. BRIGGS
not only is the government free to set the amount of drugs in
a fictional stash house at an arbitrarily high level, it can also
minimize the obstacles that a defendant must overcome to
obtain the drugs. See, e.g., United States v. Williams, 547 F.3d
1187, 1193 (9th Cir. 2008) (“[The ATF Agent] said that in a
few days, the stash house would contain one hundred kilo-
grams of cocaine and between fifty and sixty thousand dollars
in currency, guarded only by the two women who count the
money and a single guard with a sawed off shotgun.”). The
ease with which the government can manipulate these factors
makes us wary of such operations in general, and inclined to
take a hard look to ensure that the proposed stash-house rob-
bery was within the scope of Briggs’ ambition and means.
[11] In this case, however, we conclude that Briggs’ guilty
plea forecloses him from raising this claim. Cf. United States
v. Dickey, 924 F.2d 836, 839 (9th Cir. 1991) (“[A]t least
where a defendant pleads guilty to an offense, we see no war-
rant for the argument that governmental . . . misconduct
should mitigate the sentence of an admittedly guilty defen-
dant.” (internal quotation marks and alteration omitted)). In
his plea agreement Briggs admitted that the conspiracy he was
charged with involved “at least 5 kilograms but less than 15
kilograms of methamphetamine and at least 15 kilograms but
less than 50 kilograms of cocaine.” Thus, he fully admitted to
the drug quantities on which his sentence was based. Further,
Briggs made no effort before the district court to show that he
was incapable of consummating the proposed robbery.
Because we have not been presented with any such evidence
and because Briggs admitted to the charged drug quantities,
we reject Briggs’ bare assertion that he was the victim of sen-
tencing entrapment.3
3
Although we need not reach the issue, the burden of establishing that
the drug quantities involved were not within the scope of Briggs’ ambition
or means appears to have been on Briggs. See United States v. Barnes, 993
F.2d 680, 682-84 (9th Cir. 1993) (placing on defendant the burden to show
that the defendant could not reasonably have produced the $500,000 nec-
essary to complete the drug transaction on which his conviction was
based).
UNITED STATES v. BRIGGS 16485
[12] Briggs’ final contention is more convincing. He
argues that the district court erroneously calculated his sen-
tence under the Sentencing Guidelines when it applied a
firearm-related enhancement to his offense level.4 We agree.
[13] The offense level that ultimately produced Briggs’
Guidelines sentencing range derived from his conviction of
conspiracy to possess a firearm in connection with a drug-
trafficking crime. See 18 U.S.C. § 924(o); U.S.S.G. §§ 2K2.1,
2X1.1 (2007). To calculate the offense level for this convic-
tion, the district court was required to “cross-reference”
Guideline § 2D1.1, which covers trafficking in narcotics. See
U.S.S.G. § 2K2.1(c) (2007) (establishing “cross-reference”
provision when defendant “used or possessed any firearm in
connection with the commission or attempted commission of
another offense”).
[14] Guideline § 2D1.1(a) looks to the quantity of drugs
involved in the drug-trafficking crime to establish a base
offense level. See U.S.S.G. § 2D1.1(a)(3) (2007). Section
2D1.1(b) then requires a two-level enhancement to this
offense level if “a dangerous weapon (including a firearm)
was possessed” in connection with the crime. U.S.S.G.
§ 2D1.1(b)(1) (2007). Although Briggs was never found with
any weapons, the district court applied this two-level
enhancement because Briggs “intended to possess a firearm
during the drug trafficking crime.”
4
Briggs also raises another argument, but it requires little discussion. He
challenges the enhancement he received for being an organizer of the con-
spiracy. The evidence, however, established that Briggs was the point of
contact with the undercover federal agents, that he brought together his
brother and Mora, and that, to the extent guns were to be involved, he
arranged to acquire them. The district court’s finding was not clearly erro-
neous. See United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008)
(“[W]e review for clear error the district court’s finding that [the defen-
dant] was an organizer or leader.”).
16486 UNITED STATES v. BRIGGS
[15] The district court’s application of this enhancement
was error. The enhancement in § 2D1.1(b)(1) may not be
applied solely because the defendant planned on using a fire-
arm in connection with a drug-trafficking offense, even
though no firearm was possessed. Rather, the plain language
of § 2D1.1(b)(1) requires possession of a weapon.
[16] The district court did not make any findings of fact
concerning whether or not the defendant actually possessed a
dangerous weapon in connection with the conspiracy. The
defendant repeatedly bragged about the guns he had access to,
but none of these firearms was ever recovered. Accordingly,
we vacate Briggs’ sentence and remand to the district court on
an open record on which the government will have the oppor-
tunity to prove the facts necessary to support such an
enhancement. See Carty, 520 F.3d at 993 (“It would be proce-
dural error for a district court to fail to calculate — or to cal-
culate incorrectly — the Guidelines range.”).
IV.
We affirm the district court’s denial of Briggs’ motion to
withdraw his guilty plea and affirm his conviction, but we
vacate his sentence and remand for resentencing.
AFFIRMED in part, VACATED in part, and
REMANDED.