United States v. Leech

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4432

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAYMOND O. LEECH, a/k/a Neil,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:06-cr-00427-WDQ-2)

Argued: October 29, 2010 Decided: February 2, 2011

Before TRAXLER, Chief Judge, and DUNCAN and KEENAN, Circuit
Judges.

Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Chief Judge
Traxler and Judge Duncan joined.

ARGUED: Michael R. Carithers, Jr., Baltimore, Maryland, for
Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

Raymond O. Leech was convicted of conspiring to distribute

100 kilograms or more of marijuana, in violation of 21 U.S.C. §§

841(b)(1)(B), 846. He argues on appeal that the district court:

1) abused its discretion in refusing to permit him to withdraw

his guilty plea; and 2) erred in sentencing him to 151 months’

imprisonment, at the high end of his sentencing guidelines

range, without making any findings concerning the factors stated

in 18 U.S.C. § 3553(a) or otherwise explaining the reasons for

the sentence imposed.

We conclude that the district court did not abuse its

discretion in denying Leech’s motion to withdraw his guilty

plea, and we affirm Leech’s conviction. However, we hold that

the district court committed significant procedural error in

sentencing Leech, by failing to make an individualized

assessment and by failing to articulate a reason for the

sentence imposed. Therefore, we vacate Leech’s sentence and

remand for resentencing.

I.

In November 2006, Leech and ten other individuals were

indicted for conspiring to distribute, and possessing with the

intent to distribute, 100 kilograms or more of marijuana and 500

grams or more of cocaine. This charge carried a mandatory

2
minimum sentence of five years’ imprisonment. 21 U.S.C. §

841(b)(1)(B).

In June 2007, Leech entered a guilty plea to the marijuana

component of the conspiracy charge. The district court held a

Rule 11 plea hearing, in which the court described the charges

and informed Leech of the mandatory minimum five-year sentence

under 21 U.S.C. § 841(b)(1)(B). The district court asked Leech,

who was being examined under oath, if he understood “the charge

and the penalty.” Leech answered, “yes.” When the district

court asked whether Leech understood “what [he was] pleading

guilty to, what it means, and what the penalties are,” Leech

again answered, “yes.”

In response to questions posed by the district court, Leech

stated that he was able to read, write, and understand the

English language. Leech informed the district court that he had

conferred with his counsel regarding the indictment, that his

counsel had answered all of Leech’s questions, and that Leech

was satisfied with the services rendered by his counsel. Leech

further stated that he had read and understood the plea

agreement, had discussed it with counsel, and agreed to its

terms. Finally, Leech represented to the district court that

the facts stated in the plea agreement were true, and that he

was pleading guilty “because [he was], in fact, guilty.”

3
 Leech’s sworn statements during this plea hearing were

consistent with the statements in his written plea agreement,

which was presented to the district court as part of his guilty

plea. Leech signed this plea agreement directly beneath a

written representation that he had read the agreement carefully

along with his counsel, that he understood and consented to the

agreement, that he reviewed with his counsel both the factual

stipulation and the stipulation regarding the advisory Federal

Sentencing Guidelines (the guidelines) that were included in his

plea agreement, and that he was completely satisfied with the

services provided by his counsel. The written plea agreement

also specified the five-year mandatory term of imprisonment

provided by 21 U.S.C. § 841(b)(1)(B) for the charge of

conspiracy to distribute marijuana.

Additionally, in the factual stipulation accompanying his

written plea agreement, Leech admitted his active and

supervisory roles in the drug trafficking scheme, which involved

more than 400 kilograms (800 pounds) of marijuana. Leech also

admitted in this factual stipulation that he personally received

at least 225 kilograms (495 pounds) of marijuana within a six-

month period as part of the conspiracy, and that it was

“reasonably foreseeable” to Leech that at least 400-600

kilograms (880-1320 pounds) of marijuana would be distributed

during the course of Leech’s participation in the conspiracy.

4
 In January 2008, more than seven months after his Rule 11

plea hearing, Leech, acting pro se, sent a letter to the

district court asking to withdraw his guilty plea, based on his

assertion that he had been told he was subject to a lesser term

of imprisonment than the terms stated in the plea agreement.

Thereafter, on March 19, 2008, one week before he was scheduled

to be sentenced, Leech, then represented by new counsel, filed a

formal motion seeking to withdraw his guilty plea.

In this motion, Leech claimed that he was not provided a

copy of his indictment, that he signed the plea agreement under

pressure, that his plea was not knowingly and voluntarily made,

that the plea terms regarding his sentencing guidelines range

and the mandatory minimum prison term were different from what

his prior counsel had told him, and that he had not been given

an opportunity to credibly assert his innocence. Leech

contended that he was informed by his prior counsel that he

would receive a sentence under the guidelines of between 46 and

57 months’ imprisonment, rather than the five-year mandatory

minimum sentence under 21 U.S.C. § 841(b)(1)(B), or the

guidelines calculation in the presentence report of between 87

and 108 months’ imprisonment. 1

1
The 87-to-108 month sentencing range under the guidelines,
as set forth in the presentence report, assumed a three-level
downward departure for acceptance of responsibility.

5
 In March 2008, the district court conducted a sentencing

hearing, in which the court heard oral argument concerning

Leech’s motion to withdraw his guilty plea. During this

hearing, Leech contradicted many of the statements that he had

made under oath in June 2007 during the Rule 11 hearing. The

government opposed Leech’s motion.

The district court considered the list of six non-exclusive

factors identified in United States v. Moore, 931 F.2d 245 (4th

Cir. 1991), and in United States v. Bowman, 348 F.3d 408 (4th

Cir. 2003), which provide guidance in determining whether a

defendant should be allowed to withdraw a guilty plea. These

factors include:

(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 close assistance of
competent counsel;
(5) whether withdrawal will cause prejudice to the
government; and
(6) whether [withdrawal] will inconvenience the court
and waste judicial resources.

Bowman, 348 F.3d at 414 (citing Moore, 931 F.2d at 248).

The district court held that each of these six factors

weighed against granting Leech’s motion. First, the district

court found that Leech’s plea was knowing and voluntary, based

on the sworn statements given by Leech during the plea colloquy.

6
Second, the district court found that Leech did not credibly

assert his innocence because Leech disputed only the quantity of

drugs involved, rather than his participation in the conspiracy.

The district court also found that there was sufficient evidence

of Leech’s guilt, as recounted in the stipulation of facts that

Leech signed, as well as Leech’s admission during the Rule 11

hearing that he was in fact guilty of the crime charged.

Third, the district court noted that Leech waited about

seven months between submitting his plea on June 8, 2007, and

his January 28, 2008 letter seeking to withdraw the plea. The

district court characterized this delay as “significant.”

Fourth, the district court found that Leech had close assistance

of his prior counsel, who was competent and, in the court’s

opinion, “was one of the more experienced, capable, zealous, and

articulate federal public defenders in [the] district.”

Fifth, the district court determined that there would be

prejudice to the government if Leech were allowed to withdraw

his guilty plea. The district court noted that one of Leech’s

codefendants was scheduled to be tried soon, and a decision to

join Leech as a codefendant in that trial would require the

government “to expend additional resources and lengthen [the]

trial” because of additional evidence that would be required.

Sixth and finally, the district court held that joining Leech as

a codefendant in the upcoming trial would lengthen the

7
proceedings, would be an inconvenience to the court, and would

waste judicial resources. Because the district court determined

that each of these six factors weighed against allowing Leech to

withdraw his guilty plea, the district court denied Leech’s

motion.

The district court proceeded to hear argument regarding the

appropriate sentence that Leech should receive. The government

argued that the district court should not apply a downward

departure to Leech’s guidelines range based on acceptance of

responsibility because Leech had attempted to withdraw his

guilty plea. The government also referred to the extremely

large amount of drugs involved in the conspiracy, and to Leech’s

two previous drug-related convictions, requesting a sentence at

the high end of Leech’s guidelines range of 121-151 months’

imprisonment. Leech asked for a sentence at the low end of his

guidelines range, asserting that he needed to be present to help

his young son, and that Leech could “better[] himself” by

participating in a drug treatment program.

The district court sentenced Leech to a term of

imprisonment of 151 months, at the high end of Leech’s

guidelines range, followed by a five-year term of supervised

release. The district court stated that it was not adjusting

Leech’s offense level for acceptance of responsibility

“considering the circumstances of the attempt to withdraw the

8
[guilty] plea.” Other than this statement, the district court

did not explain its reasons for sentencing Leech to 151 months’

imprisonment. Leech, however, did not object, either at the

hearing or in writing following the hearing, to the procedure

employed by the district court in imposing his sentence.

II.

We first address Leech’s argument that the district court

abused its discretion in refusing to grant his motion to

withdraw his guilty plea. 2 We review the district court’s denial

of Leech’s motion for an abuse of discretion. See United States

v. Battle, 499 F.3d 315, 319-20 (4th Cir. 2007). We review the

adequacy of the guilty plea de novo. United States v. Good, 25

F.3d 218, 219 (4th Cir. 1994).

A defendant does not have an absolute right to withdraw a

guilty plea, but bears the burden of demonstrating a fair and

just reason to justify his request for withdrawal. United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000); Moore,

931 F.2d at 248. A properly conducted Rule 11 colloquy creates

2
Although the plea agreement contained a waiver of appeal
provision, that waiver was applicable only to a sentence
resulting from an adjusted offense level of 27 or lower.
Because the district court declined to make any adjustment for
acceptance of responsibility, Leech’s offense level was
calculated at level 30. Thus, as the government acknowledges,
Leech’s appeal waiver is inapplicable here.

9
a “strong presumption” that a plea of guilty was taken

appropriately and is “final and binding.” United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

We conclude that the district court did not abuse its

discretion in refusing to allow Leech to withdraw his guilty

plea. At the Rule 11 hearing, the district court conducted a

thorough and comprehensive plea colloquy, ensuring that Leech

understood the nature of the charges, including the mandatory

minimum and potential maximum penalties under the statute. The

district court further determined that Leech had conferred with

his counsel and was satisfied with his counsel’s services. 3

Leech’s answers during the plea colloquy were consistent

with the representations in his plea agreement and the

accompanying statement of facts, both of which he signed.

Further, there is nothing in the transcript indicating that

3
Leech asserts that his prior counsel promised that Leech
would receive a sentence in the range of between 46 and 57
months’ imprisonment. The record does not show any evidence of
such a promise. We note that the plea agreement that Leech
signed specifically advised Leech of the five-year mandatory
minimum sentence. Further, any misconceptions Leech had
concerning his sentence should have been cured by the district
court’s colloquy during the Rule 11 hearing, in which Leech was
again advised of the five-year mandatory minimum sentence. See
Lambey, 974 F.2d at 1394-95 (holding that district court’s
statements during Rule 11 plea hearing concerning defendant’s
potential sentence, coupled with defendant’s acknowledgment at
hearing that he understood this information, defeats claim that
defendant’s counsel misinformed defendant of possible sentence).

10
Leech failed to understand the meaning of the district court’s

questions or the consequences of his answers. Therefore, Leech

must overcome the “strong presumption” that his guilty plea is

“final and binding.” Lambey, 974 F.2d at 1394.

Leech is not able to overcome this “strong presumption” of

finality. The district court applied the six non-exclusive

factors that we identified in Moore and Bowman, which guide

courts in deciding whether a defendant has demonstrated a fair

and just reason for withdrawing a guilty plea. For the reasons

stated by the district court in its consideration of the six

factors set forth above, we agree that each of these factors

weighs against allowing Leech to withdraw his plea.

Of particular significance, we note that Leech’s request to

withdraw his guilty plea, and his arguments on appeal,

contradict many of the statements that he made under oath during

the Rule 11 plea hearing. As the district court observed,

Leech’s motion effectively placed him in the untenable position

of arguing that he was lying under oath during his sworn

testimony in the Rule 11 hearing, but was telling the truth in

his unsworn statements in his motion to withdraw his guilty

plea. Based on these considerations, we conclude that the

district court did not abuse its discretion in denying Leech’s

motion to withdraw his guilty plea, and we affirm Leech’s

conviction.

11
 III.

We next consider Leech’s argument that his sentence should

be vacated because the district court did not explain its

reasons for imposing a sentence of 151 months, or otherwise make

any findings concerning the factors provided in 18 U.S.C. §

3553(a). Under § 3553(a), the district court “shall consider” a

number of factors in determining the sentence to be imposed,

including, among others, “the nature and circumstances of the

offense and the history and characteristics of the defendant,”

and “the need for the sentence imposed.”

The district court is required to consider the § 3553(a)

factors in every case, regardless whether the court’s sentence

is within the guidelines range. Battle, 499 F.3d at 323. The

reason for this requirement, and the requirement that the

district court articulate a basis for the sentence imposed, is

to ensure that the district court considered the parties’

arguments and had a reasoned basis for exercising its sentencing

authority. United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010).

The requirement that the district court provide an

explanation for the sentence imposed also permits “meaningful

appellate review” and promotes a perception of fairness in the

sentencing process. See Gall v. United States, 552 U.S. 38, 50

(2007). “[A] district court’s explanation of its sentence need

12
not be lengthy, but the court must offer some ‘individualized

assessment’ justifying the sentence imposed and rejection of

arguments for a higher or lower sentence based on § 3553.”

Lynn, 592 F.3d at 584 (quoting Gall, 552 U.S. at 50).

A.

A threshold issue that we consider is whether Leech

preserved his argument concerning the procedural

unreasonableness of the district court’s sentence. The

government argues that because Leech did not object in the

district court to any purported sentencing errors committed by

the court, we should review the district court’s sentencing

proceeding only for plain error. Leech argues, however, that he

preserved this issue by arguing for a sentence at the low end of

his guidelines range. Therefore, according to Leech, we should

review his sentence for abuse of discretion.

Under similar factual circumstances in Lynn, we addressed

the applicable standard of review for claims of procedural

sentencing error. 4 In Lynn, we explained that a defendant who

fails to object to a sentencing error after a court announces

its sentence has not necessarily failed to preserve his argument

on that issue. 592 F.3d at 578-79. We held that a defendant

4
Although Lynn was decided after the completion of briefing
in this case, the parties addressed the decision during oral
argument in this appeal.

13
may preserve his claim of procedural sentencing error if, prior

to the court’s ruling, the defendant “inform[s] the court . . .

of the action the party wishes the court to take.” Id. at 577-

78 (quoting Fed. R. Crim. P. 51(b)) (emphasis deleted). We

stated that “[b]y drawing arguments from § 3553 for a sentence

different than the one ultimately imposed, an aggrieved party

sufficiently alerts the district court of its responsibility to

render an individualized explanation addressing those arguments,

and thus preserves [his] claim.” Id. at 578.

Here, Leech requested a sentence at the low end of his

guidelines range before the district court imposed sentence at

the high end of that range. As stated above, Leech argued

during the sentencing hearing that he should be sentenced at the

low end of the guidelines range because of his age, his desire

to participate in a drug treatment program, and his goal of

being a good father to his three-year-old son. These arguments

relate to the “history and characteristics of the defendant,”

one of the factors identified in § 3553(a). Thus, because Leech

drew arguments from § 3553(a) in his request for a sentence

different than the one ultimately imposed, we hold that Leech

preserved his claims for appellate review under the abuse of

discretion standard. See Lynn, 592 F.3d at 578; cf. United

States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)

(reviewing claim of procedural unreasonableness for plain error

14
because defendant did not argue for a sentence different from

the sentence that he received).

B.

The government concedes that the district court both failed

to make any findings concerning the § 3553(a) factors, and did

not otherwise explain during the sentencing hearing the reasons

for its imposition of a sentence of 151 months. We agree with

the government’s characterization of the record in this regard.

When a district court either fails to consider the §

3553(a) factors, or fails to explain the reasons for the

sentence imposed, the court commits “significant procedural

error.” Gall, 552 U.S. at 51. Thus, the district court’s

failure in the present case to explain its rationale was

“significant procedural error,” constituting an abuse of

discretion. See Gall, 552 U.S. at 51; Lynn, 592 F.3d at 585.

When we conclude that a district court has committed

significant procedural error of this type, we ordinarily will

vacate a defendant’s sentence and remand for resentencing. See

United States v. Lewis, 606 F.3d 193, 201 (4th Cir. 2010). The

rationale underlying this course of action is that the district

court, not an appellate court, must make an individualized

assessment of the appropriate sentence based on the particular

facts presented. United States v. Carter, 564 F.3d 325, 329

(4th Cir. 2009).

15
 In Lynn, however, we applied a harmless error analysis to a

within-guidelines sentence even though the district court failed

to provide reasons for its sentencing determination. 592 F.3d

at 585. We held that under such circumstances, the government

bears the burden to establish convincingly that the district

court’s error was harmless. 5 See Lynn, 592 F.3d at 585.

Although we ultimately held that the government failed to meet

its burden of establishing that the procedural sentencing error

was harmless, our decision in Lynn nevertheless provides

guidance that in an appropriate and exceptional case, we may

affirm a district court’s within-guidelines sentence even though

the court committed procedural sentencing error.

One case in which we applied harmless error review in

affirming a defendant’s sentence was United States v. Boulware,

604 F.3d 832 (4th Cir. 2010). In Boulware, the government

conceded that the district court committed procedural error by

failing to sufficiently explain the court’s rejection of the

defendant’s request for a below-guidelines sentence. In holding

that any procedural error committed was harmless, we emphasized

5
In order to satisfy this burden, the government must
demonstrate that the error “‘did not have a substantial and
injurious effect or influence’ on the result,” so that we can
say with “fair assurance” that the district court’s
consideration of the defendant’s arguments “would not have
affected the sentence imposed.” Lynn, 592 F.3d at 585 (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

16
that the record established that the district court undertook

the § 3553(a) analysis, and considered the Boulware’s arguments

in the context of this statutory requirement. Id. at 839.

These conclusions in Boulware were based on our observation

of the district court’s statements during sentencing that the

court had “taken into account all the factors required of [it]

by Section 3553(a), including the nature and characteristics of

the defendant, the nature and circumstances of the offense, the

need to promote deterrence, a specific deterrence and general

deterrence, and all the other factors required.” Id. at 835.

The district court further stated that after considering these

factors and applying them to the situation presented, the court

was convinced that the sentence it was imposing was appropriate.

Id. at 835. Thus, the record made by the district court in

Boulware allowed us to conduct meaningful appellate review, such

that we did not have to guess regarding the district court’s

rationale. See Carter, 564 F.3d at 329-30.

In contrast to the record in Boulware, the record here does

not reveal any reason offered by the district court in support

of the sentence imposed. After the parties made their

sentencing arguments, the district court stated Leech’s

guidelines offense level and criminal history score and then

simply announced the sentence. The court did not acknowledge

17
the arguments made by counsel for Leech, and did not mention §

3553(a) or discuss any of the § 3553(a) factors.

We therefore have no basis for determining whether the

district court undertook the § 3553(a) analysis in sentencing

Leech, or considered Leech’s argument in the context of the §

3553(a) factors. Cf. Boulware, 604 F.3d at 839. Because the

record leaves us unable to conduct meaningful appellate review

of Leech’s sentence, we hold that this is not an exceptional

case appropriate for affirmance under the harmless error

doctrine.

Instead, we conclude that this case is similar to Carter,

in which we vacated the defendant’s sentence and remanded for

resentencing because the district court failed to justify its

sentence with an “individualized rationale.” 564 F.3d at 328-

29. In Carter, as is true here, the record did not reveal why

the district court concluded that the sentence it imposed was

appropriate. Id. at 330.

Our decision in Carter reflected the Supreme Court’s

admonition in Gall that the district court, rather than the

appellate court, is required to make an individualized

sentencing determination based on the facts presented. Carter,

564 F.3d at 329-30 (citing Gall, 552 U.S. at 50-52). Thus, we

held in Carter that an appellate court may not speculate

18
regarding the district court's rationale when reviewing a

defendant’s challenge to his sentence. 564 F.3d at 329.

In view of the complete absence of reasons offered by the

district court to explain Leech’s sentence, we are left merely

to speculate regarding the district court’s reasons for imposing

that sentence. Therefore, in accordance with our holding in

Carter, we must vacate Leech’s sentence and remand for

resentencing. See id.

For these reasons, we affirm Leech’s conviction, but vacate

his sentence and remand for resentencing. 6

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

6
Prior to oral argument, Leech filed a motion in this court
seeking leave to file a pro se supplemental brief. We grant
this motion, and reject as meritless Leech’s arguments that the
district court lacked jurisdiction to conduct his criminal
proceedings, and that his indictment was issued in violation of
the Fifth Amendment.

19