United States v. Mayweather

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50449
Plaintiff-Appellee, D.C. No.
v. 2:08-CR-00259-
JFW-1
JOSHUA GIBRAN MAYWEATHER,
Defendant-Appellant.  ORDER
AMENDING
OPINION AND
AMENDED
 OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Argued and Submitted
May 5, 2010—Pasadena, California

Filed September 27, 2010
Amended December 29, 2010

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block, Senior District Judge.*

Opinion by Judge Block

*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

20741
20744 UNITED STATES v. MAYWEATHER

COUNSEL

George S. Cardona, Acting United States Attorney for the
Central District of California, by Christine C. Ewell and
Gregory A. Lesser, Assistant United States Attorneys, Los
Angeles, California, for the plaintiff-appellee.

Ethan A. Balogh, Coleman & Balogh LLP, San Francisco,
California, for the defendant-appellant.

ORDER

I

The opinion filed in this case on September 27, 2010, slip
op. 16511, and appearing at 623 F.3d 762 (9th Cir. 2010), is
amended as follows:

On Slip Opinion page 16524, lines 22-24, replace with

On Slip Opinion page 16524, line 24, insert a paragraph
break after the amended sentence ending with .
 UNITED STATES v. MAYWEATHER 20745
On Slip Opinion page 16524, line 24, insert a new sentence
after the new paragraph break:

On Slip Opinion page 16526, lines 12-13, replace with .

II

The panel has unanimously voted to deny the petition for
rehearing. Judges O’Scannlain and Tallman have voted to
deny the petition for rehearing en banc, and Judge Block has
so recommended. The full court has been advised of the peti-
tion for rehearing en banc, and no active judge has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.

The petition for rehearing and the petition for rehearing en
banc are DENIED. No subsequent petitions for rehearing or
for rehearing en banc will be considered.

OPINION

BLOCK, Senior District Judge:

Defendant-Appellant Joshua Mayweather (“Mayweather”)
appeals the district court’s judgment sentencing him princi-
pally to 60 months’ imprisonment following his guilty plea to
possessing a firearm in furtherance of a drug trafficking
crime. He argues (1) that the district court erred in not allow-
ing him to withdraw his plea, and (2) that his trial counsel
20746 UNITED STATES v. MAYWEATHER
provided ineffective assistance. We affirm, and write princi-
pally to address the effect of United States v. McTiernan, 546
F.3d 1160 (9th Cir. 2008), on Mayweather’s first claim.

I

A. Events Leading to Mayweather’s Guilty Plea

On January 14, 2008, police responded to a silent alarm at
Mayweather’s apartment in Los Angeles. Mayweather met the
officers at the door and refused to let them in to check the
alarm system. The officers entered, however, when someone
inside opened the door to leave.

While searching for the alarm panel, the officers smelled
marijuana and saw what appeared to be narcotics and drug
paraphernalia, as well as a shotgun. They called narcotics
detectives, who obtained a search warrant. In addition to the
items already observed, the ensuing search uncovered a sec-
ond firearm.

On February 28, 2008, Mayweather was indicted on two
counts of possessing controlled substances with intent to dis-
tribute, in violation of 21 U.S.C. § 841(a), and one count of
possessing the two firearms in furtherance of the drug traf-
ficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)(i). He
retained Richard Barnwell to represent him. Trial was sched-
uled for June 10, 2008, with pretrial motions due by May 20,
2008.

On May 15, 2008, Barnwell and the government filed a
joint stipulation requesting a continuance. In it, Barnwell rep-
resented, inter alia, that he had been “investigating a possible
suppression issue,” and that his vacation plans prevented him
from completing his investigation by the May 20th deadline.
The district court summarily denied the request. No pretrial
motions were filed.
 UNITED STATES v. MAYWEATHER 20747
After returning from vacation, Barnwell received an offer
from the government to drop the narcotics counts in exchange
for a guilty plea on Count Three, the firearms count. On June
2, 2008, he informed the district court that he had reviewed
the plea offer, but had not had time to discuss it with May-
weather. The district court granted a four-day continuance.

On June 6, 2008, Mayweather and Barnwell signed the plea
agreement in open court. The district court then conducted an
extensive colloquy pursuant to Federal Rule of Criminal Pro-
cedure 11. Mayweather acknowledged, under oath, that he
understood the plea agreement, the charge he would be plead-
ing guilty to, the rights he was forfeiting, and his sentencing
exposure; in that last regard, the court had the government
state the minimum and maximum potential sentences:

The statutory maximum sentence the Court could
impose for the violation of Title 18 United States
Code Section 924(c), as charged in Count Three of
the indictment is, life imprisonment[.]

The statutory mandatory minimum sentence that the
Court must impose for a violation of Title 18 United
States Code Section 924(c), as charged in Count
Three of the indictment is a five-year term of impris-
onment, which must run consecutive to any other
sentence of imprisonment.

Mayweather further averred that he was pleading guilty vol-
untarily, and not because of any threats or promises.

The court then asked for an offer of proof. The government
represented that Mayweather “possessed [the firearms found
in his apartment] during the time he possessed the controlled
substances with the intent to deliver them to another person,
and in part to protect himself while he possessed the con-
trolled substances.” In response, Mayweather admitted that
“everything that [the prosecutor] said about [him] was true
20748 UNITED STATES v. MAYWEATHER
and correct,” and that he “did those acts charged in Count
Three.”

For his part, Barnwell stated that Mayweather was compe-
tent to plead guilty, and that his plea was made knowingly and
voluntarily. He further stated—without contradiction from his
client—that he had advised Mayweather “in extreme detail”
regarding “the legality or admissibility of any statements, or
confessions, or other evidence the government has against
him.” Accordingly, Barnwell told the court that Mayweather
was not “pleading guilty because of any illegally obtained
evidence,” and that Barnwell had “explore[d] with [Maywea-
ther] any possible defenses [he] may have.”

Mayweather was not asked whether he had discussed possi-
ble suppression issues and defenses with Barnwell. The court
did ask Mayweather, however, whether he had any questions.
In response, Mayweather asked only for an explanation of a
provision of the plea agreement preserving his right to bring
a collateral attack “based on the claim of ineffective assis-
tance of counsel, a claim of newly discovered evidence, or an
explicitly retroactive change in the applicable sentencing
guidelines, sentencing statutes, or statutes of conviction.” In
addition, he pointed out an inconsistency in the police report
regarding the location of the shotgun. Nevertheless, he
affirmed that he was pleading guilty “because [he was], in
fact, guilty.”

At the conclusion of the proceeding, the district court
accepted Mayweather’s guilty plea. Sentencing was scheduled
for August 18, 2008.

B. Mayweather’s Motions to Discharge Barnwell and
Withdraw His Plea

On August 13, 2008, Mayweather moved, pro se, to dis-
charge Barnwell. At oral argument on August 18th, Maywea-
ther said that he intended to withdraw his plea because
 UNITED STATES v. MAYWEATHER 20749
Barnwell had forced him to plead guilty. Barnwell denied the
accusation, stating that when presented with the decision
whether to “fight this or . . . accept this deal,” Mayweather
told him to accept the plea offer.

Although the district court noted that Mayweather’s claim
of coercion was “contradicted by [his] statements to the . . .
Court under oath when [it] took [his] plea,” it did not other-
wise comment on Mayweather’s statement that he intended to
withdraw his plea. It did, however, grant Mayweather’s
motion to discharge Barnwell, apparently in deference to
Mayweather’s wishes and Barnwell’s representation that he
did not think he could continue as Mayweather’s counsel.
New counsel was then appointed and the sentencing was
adjourned.

Prior to sentencing, Mayweather moved, through new
counsel, to withdraw his plea on the ground that he had been
“coerced into the entry of the plea as a result of [Barnwell’s]
failure to prepare his defense, including filing a motion to
suppress the January 14, 2008 search and seizure of narcotics
and firearms from his apartment.” (Emphasis added.) In addi-
tion, Mayweather argued that the plea was not knowingly
made because Barnwell had “improperly advised [him] that
his expected sentence was a maximum of five years not a
minimum of five years.” In an affidavit, Mayweather attested
that the following events had led to his plea:

• Prior to the plea, Mayweather “made it very clear
to Mr. Barnwell that [he] wanted to litigate [his]
case, including a motion to suppress the January
14, 2008 search of [his] apartment.” (Emphasis
added.) Barnwell told Mayweather that he would
file such a motion.

• On June 6, 2008, Barnwell told Mayweather that
he had to decide whether to accept the plea offer,
advising Mayweather that “the maximum [he]
20750 UNITED STATES v. MAYWEATHER
could receive was a term of imprisonment of five
years.”

• When Mayweather told Barnwell that he did not
wish to accept the offer, Barnwell responded that
he had to “choose between entering a guilty plea
. . . or going to trial the following week.”

• When Mayweather told Barnwell that he wanted
to pursue the suppression issue, Barnwell
responded “that he did not file the motion and
that he had not prepared the case for trial.”

The government opposed the motion, relying primarily on
Mayweather’s statements during the plea colloquy and an
affidavit from Barnwell. In it, Barnwell offered a very differ-
ent account:

• After a thorough investigation, he advised May-
weather that “a motion to suppress the search of
his residence as illegal would most likely fail.”
He did not promise to file a suppression motion
but, rather, to “support whatever decision” May-
weather made.

• Barnwell impressed upon Mayweather the need
to make a quick decision whether to go to trial or
accept a plea offer. The district court’s denial of
the stipulated request for a continuance “did not
change the defense posture that a suppression
motion would probably not succeed.” However,
the government told Barnwell that making such
a motion “would definitely render the govern-
ment’s plea offer to [Mayweather] less favor-
able.”

• Barnwell read the government’s written plea
offer to Mayweather in its entirety, “including the
 UNITED STATES v. MAYWEATHER 20751
statutory maximum of life imprisonment.” May-
weather agreed to sign the plea agreement once
certain changes were made.

• Barnwell discussed whether to accept the deal
with Mayweather and his family on several occa-
sions. “Such discussions always ended with his
family and [Mayweather] wanting the deal.”

• Barnwell did advise Mayweather on June 6,
2008, that the choices he faced were “pleading
guilty . . . or going to trial the following week.”
Barnwell denied, however, telling Mayweather
that he was not prepared for trial.

• At his presentence interview, Mayweather stated
that his mother had coerced him to plead guilty.

C. The District Court’s Decision

The district court held oral argument on October 6, 2008.
Ruling from the bench, the court credited Barnwell’s version
of the facts, finding Mayweather’s affidavit “absolutely not
credible” and “in direct conflict with the statements [he] made
to the Court under oath during the plea colloquy.” It also
“[found] important that [Mayweather had] never denied that
he was guilty of the charges or claimed that he was innocent
of the charges.”

Turning to Mayweather’s specific arguments, the court first
addressed Barnwell’s failure to file a suppression motion:

Any motion to suppress based upon the facts and the
applicable law relating to the search of [Maywea-
ther’s] apartment, as set forth in the government’s
opposition, would have been frivolous. More impor-
tantly, Mr. Barnwell’s declaration establishes that he
thoroughly investigated the factual basis for such a
20752 UNITED STATES v. MAYWEATHER
motion, including interviewing the officers and wit-
nesses involved, and discussed the consequences of
filing such a motion with government counsel.

With respect to sentencing exposure, the court stated that
Mayweather’s claim that Barnwell had misadvised him was
“demonstrably false” based on Mayweather’s representations
that he had read and understood the plea agreement, “which
clearly set[ ] forth the . . . the statutory minimum sentence of
five years,” and the government’s repetition of his sentencing
exposure at the plea proceeding.

Concluding, the district court found that Mayweather had
“simply changed his mind about his plea” and “manufactured
the reasons for his request to withdraw his plea.” Accord-
ingly, the court denied the motion because Mayweather had
failed to establish a “fair and just” reason for withdrawing his
guilty plea; it then imposed sentence.

II

[1] Federal Rule of Criminal Procedure 11(d)(2)(B) pro-
vides that a defendant may withdraw a plea of guilty prior to
sentencing if he “can show a fair and just reason for request-
ing the withdrawal.” We review the denial of a motion to
withdraw a plea for abuse of discretion. See United States v.
Ensminger, 567 F.3d 587, 590 (9th Cir. 2009). “A court
abuses its discretion when it rests its decision on an inaccurate
view of the law, or on a clearly erroneous finding of fact.” Id.
(citations and internal quotation marks omitted). However, we
may affirm for any reason supported by the record. See Grif-
fin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009).

[2] “Fair and just reasons for withdrawal include inade-
quate Rule 11 plea colloquies, newly discovered evidence,
intervening circumstances, or any other reason for withdraw-
ing the plea that did not exist when the defendant entered his
plea.” United States v. Ortega-Ascanio, 376 F.3d 879, 883
 UNITED STATES v. MAYWEATHER 20753
(9th Cir. 2004). “While the defendant is not permitted to with-
draw his plea ‘simply on a lark,’ the ‘fair and just standard’
is generous and must be applied liberally.” McTiernan, 546
F.3d at 1167 (quoting United States v. Hyde, 520 U.S. 670,
676-77 (1997)). Thus, “a defendant does not have to prove
that his plea is invalid in order to establish a fair and just rea-
son for withdrawal before sentencing.” United States v. Davis,
428 F.3d 802, 806 (9th Cir. 2005); see also United States v.
Garcia, 401 F.3d 1008, 1012 (9th Cir. 2005) (“[We have]
squarely rejected the proposition that the fact that a plea is
voluntary, knowing, and intelligent forecloses an attempt to
withdraw it prior to sentencing.”). Nor must the defendant
“proclaim his innocence.” Garcia, 401 F.3d at 1012.

[3] When the basis for withdrawal is erroneous or inade-
quate legal advice, the defendant’s burden is simply to show
that proper advice “could have at least plausibly motivated a
reasonable person in [the defendant’s] position not to have
pled guilty had he known about the [grounds for withdrawal]
prior to pleading.” Id. at 1011-12. The defendant need not
show that a legal argument foregone as a result of incorrect
or incomplete advice would have been “successful on its mer-
its.” McTiernan, 546 F.3d at 1168.

Mayweather argues that he had fair and just reasons to
withdraw his plea because Barnwell (1) failed to pursue the
suppression issue, and (2) incorrectly advised him that the
statutory maximum was five years.

A. Failure to Pursue the Suppression Issue

[4] We applied the “fair and just” standard to a claim simi-
lar to Mayweather’s in McTiernan, in which we rejected the
district court’s denial of a plea withdrawal motion based on
defense counsel’s alleged failure to pursue a suppression
motion. Mayweather argues that McTiernan—decided two
weeks after the district court’s decision in this case—
mandates reversal. We disagree.
20754 UNITED STATES v. MAYWEATHER
In McTiernan, the defendant claimed “that he was never
made aware by his counsel at any time prior to his plea of the
potential basis for a suppression motion.” 546 F.3d at 1167.
Indeed, neither his written plea agreement, nor anyone who
spoke during the Rule 11 plea proceeding, specifically
addressed the suppression issue; all references to any defenses
spoke only in generalities. Thus, in his plea agreement,
McTiernan attested that “[m]y attorney has advised me . . . of
possible defenses.” Id. at 1163. At the plea proceeding, his
attorney stated that “he had pursued potential defenses with
McTiernan,” and that he had advised “McTiernan concerning
the legality or admissibility of any statements or confessions
or other evidence the government had against McTiernan”;
McTiernan confirmed that his attorney “had considered and
advised [him] as to the existence of any possible defenses.”
Id. at 1164.

Nonetheless, we vacated the district court’s order, finding
unacceptable the court’s reliance on a declaration by McTier-
nan’s counsel—presented in connection with a post-plea, non-
evidentiary hearing—that he had advised McTiernan “on the
topic of possible suppression” of a wiretapped telephone con-
versation involving the defendant, as well as the court’s belief
that a suppression motion, had one been brought, would not
have been successful. See id. at 1166. In that latter regard, we
concluded that, under the circumstances, there was “nothing
inherently implausible about the proposition that a reasonable
person would not have pled and would instead have sought
through discovery to establish an illicit motive for the taping.”
Id. at 1168. Accordingly, we remanded “to enable the district
court, after a full evidentiary hearing, to determine whether
McTiernan can establish a fair and just reason to withdraw his
plea.” Id.1
1
On remand, McTiernan’s renewed motion to withdraw, which the gov-
ernment did not oppose, was granted. See United States v. McTiernan, No.
06-CR-259 (C.D. Cal. Feb. 23, 2009) (minutes of status conference).
 UNITED STATES v. MAYWEATHER 20755
There are, to be sure, similarities between McTiernan and
this case. In each, defense counsel stated at the plea proceed-
ing that he had advised his client as to “the legality or admis-
sibility” of any statements, confessions or other evidence. In
each, the district court accepted the factual statements in
counsel’s post-plea affidavits without conducting an evidenti-
ary hearing. In each, counsel’s post-plea affidavit was not
beyond reproach; it is unclear in this case how Barnwell could
have honestly represented that he had thoroughly investigated
the suppression issue when he had previously requested addi-
tional time to investigate immediately before leaving for vaca-
tion. Finally, in each, the district court inappropriately placed
some reliance on the failure of the defendant to deny his guilt
and assert his innocence, and passed upon the merits of the
foregone suppression motion.

[5] But there is a fundamental and dispositive difference
between McTiernan and this case; namely, whether, prior to
pleading, the defendant was aware of the prospect of making
a suppression motion. In McTiernan, there was a legitimate
factual issue as to whether the defendant was advised of the
potential suppression issue “at any time prior to his plea.” 546
F.3d at 1167. Since the issue of the defendant’s knowledge
could not be resolved on the basis of his attorney’s contro-
verted post-plea affidavit, remand for an evidentiary hearing
was required to resolve whether there may have been a fair
and just reason to withdraw the plea.

[6] Here, by contrast, Mayweather supplied the requisite
pre-plea knowledge in his post-plea affidavit by stating that
he had “made it very clear to Mr. Barnwell that [he] wanted
to litigate his case, including a motion to suppress the Janu-
ary 14, 2008 search of [his] apartment.” (Emphasis added.)
Thus, unlike McTiernan, Mayweather’s plea did not result
from his lack of knowledge about the suppression issue.

Certainly, the district court gave Mayweather an opportu-
nity to voice his displeasure with Barnwell’s failure to file a
20756 UNITED STATES v. MAYWEATHER
suppression motion. The district court conducted a thorough
Rule 11 proceeding, taking particular care to engage Maywea-
ther and confirm his understanding of the proceeding. More-
over, Mayweather was an active participant, asking the court
to explain that part of the plea agreement setting forth the
bases for post-plea collateral attacks, and pointing out an
inconsistency in the police report. When, however, Barnwell
stated that his client was not pleading guilty “because of any
illegally obtained evidence,” Mayweather was conspicuously
silent. While we recognize that even a perfect Rule 11 collo-
quy does not preclude a later plea withdrawal, see Davis, 428
F.3d at 806; Garcia, 401 F.3d at 1012, it is hardly a mere for-
mality. A district court cannot be expected to accurately
assess whether a plea is knowing and voluntary unless the
defendant candidly conveys to the court what he knows. May-
weather failed to do that.

[7] In McTiernan, we repeated—with emphasis—our long-
standing interpretation of Rule 11(d)(2)(B) to allow plea with-
drawal for any reason “that did not exist when the defendant
entered his plea.” 546 F.3d at 1167 (citing Davis, 428 F.3d at
805). We have never held that the rule also embraces circum-
stances known to a defendant at the time of the guilty plea,
and we decline to do so now. Thus, we conclude that May-
weather’s decision at his plea proceeding not to bring to the
district court’s attention his alleged instruction to Barnwell to
challenge the validity of the search of his apartment precludes
him from establishing a fair and just reason for withdrawing
his plea.

B. Sentencing Exposure

[8] Mayweather’s second proffered reason—that Barnwell
erroneously advised him that he would face a maximum sen-
tence of 60 months’ imprisonment if he pleaded guilty—
requires little discussion. Even assuming that to be the case,
the plea agreement correctly recited that 60 months was the
statutory minimum and that the statutory maximum was life.
 UNITED STATES v. MAYWEATHER 20757
Whatever doubts Mayweather may have harbored had to have
been dispelled when, at the district court’s request, the gov-
ernment announced the same minimum and maximum at the
plea proceeding. We therefore agree with the district court
that Mayweather’s claim that he pleaded guilty under a mis-
taken belief as to his sentencing exposure is “demonstrably
false.”

III

[9] As for Mayweather’s claim that Barnwell provided
ineffective assistance, we review challenges to the effective-
ness of counsel on direct appeal only “(1) where the record on
appeal is sufficiently developed to permit determination of the
issue, or (2) where the legal representation is so inadequate
[based on the existing record] that it obviously denies a defen-
dant his Sixth Amendment right to counsel.” United States v.
Benford, 574 F.3d 1228, 1231 (9th Cir. 2009) (quoting United
States v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005)). Nei-
ther circumstance is present here.

[10] Mayweather’s claim of ineffective assistance obvi-
ously overlaps with his proffered reasons for withdrawing his
guilty plea. However, we have held only that Mayweather’s
knowledge of those reasons at the time of his plea precludes
plea withdrawal. The record is not developed as to what
advice Barnwell gave Mayweather, why Barnwell did not file
a suppression motion, and what would have happened had he
done so. As a result, we cannot meaningfully assess “what
counsel did, why it was done, and what, if any, prejudice
resulted.” Benford, 574 F.3d at 1231 (quoting Jeronimo, 398
F.3d at 1156). Therefore, we decline Mayweather’s invitation
to review the constitutional adequacy of Barnwell’s represen-
tation, without prejudice to his right—explicitly preserved in
his plea agreement—to seek collateral relief under 28 U.S.C.
§ 2255.

AFFIRMED.