UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4097
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:11-cr-00494-MJG-2)
Submitted: November 21, 2013 Decided: December 18, 2013
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis M. Hart, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Mark W. Crooks, Assistant
United States Attorney, Julie D. Podlesni, Special Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Howard pled guilty to a robbery conspiracy and
two related weapons charges pursuant to a negotiated Fed. R.
Crim. P. 11(c)(1)(C) agreement. Howard was sentenced to the
agreed upon sentence of thirty-two years and one day in prison.
He appeals from the denial of his motion to withdraw his guilty
plea. 1 We affirm.
We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United
States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). A defendant
seeking to withdraw his guilty plea bears the burden of
demonstrating that withdrawal should be granted, id., and the
defendant must show “‘a fair and just reason’” for withdrawal of
his plea. United States v. Faris, 388 F.3d 452, 456 (4th Cir.
2004) (citing Fed. R. Crim. P. 11(d)(2)(B)). In deciding
1
At the end of his brief, in an argument not included in
the table of contents or his summary of argument, Howard
challenges the denial of his motion to dismiss the indictment.
He asserts that his claims that he was improperly targeted for
prosecution were improperly dealt with in a summary manner.
However, our review of the record discloses that the court
provided Howard ample opportunity to make his claims and then
the court ruled on the claims, as raised. Howard was free to
submit any evidence or make any inquiry he now claims was
lacking. Accordingly, assuming this issue is properly before
us, we affirm the district court’s denial of Howard’s motion to
dismiss the indictment.
2
whether to permit a defendant to withdraw his guilty plea, a
district court should consider the six factors outlined in
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991):
(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 it will inconvenience the court and waste
judicial resources.
Howard avers that the district court improperly
weighed and considered the Moore factors in numerous ways.
First, he argues that his plea was not knowing because it was
based upon the incorrect advice of his attorney that he could
withdraw his plea at any time. 2 Howard relies inter alia on his
attorney’s testimony that he informed Howard that he could
withdraw his plea prior to the Rule 11 hearing and states that
2
Later in his appellate brief, Howard contends that the
Rule 11 hearing was deficient (and his plea involuntary) because
he did not specifically agree to the factual stipulation.
However, Howard did agree to plead guilty following the factual
recitation and stated that he was pleading guilty because he
was, in fact, guilty. Moreover, the parties (on Howard’s
insistence) negotiated a stipulated change to the factual
recitation after it was read, which implies that the remainder
of the statement was satisfactory. In any event, Howard signed
the plea agreement, which contained essentially the same factual
statement. Therefore, we conclude that any error in the Rule 11
hearing regarding the factual statement did not credibly
undermine the voluntariness of the plea.
3
this advice could have led to a misunderstanding. However,
Howard’s claim that he understood that he could withdraw his
plea at any time cannot stand in the face of the language to the
contrary in the plea agreement and Howard’s testimony at his
Rule 11 hearing. 3 Even had he initially misunderstood the
finality of his plea, the plea agreement and his Rule 11 hearing
should have cleared up any misunderstanding. Moreover, his
attorney testified that he made it clear to Howard that once he
had his Rule 11 hearing it would be very difficult to withdraw
his plea. The district court found the attorney’s testimony to
be credible, and we find no basis on which to disturb this
finding on appeal.
Next, Howard claims that his plea was involuntary
based upon his medical and emotional problems and medication and
that his counsel and the court should have made a more searching
inquiry prior to the Rule 11 hearing and at the motion to
withdraw hearing. This claim was waived by Howard at his
hearing on his motion to withdraw when he explicitly stated that
he was not pursuing it. This statement followed the court’s
request that everything on which Howard was relying should be
3
In his plea agreement, Howard was informed that there
would be no trial if he pled guilty, and at his Rule 11 hearing,
he was told that the plea was important because there would be
no trial.
4
examined and argued so that a proper record of his pro se
allegations could be made. Howard fails to even address the
waiver on appeal and, accordingly, provides no basis to ignore
it.
Howard also avers that the district court erred in
failing to make a sufficient record regarding the threats to
investigate and prosecute his mother and the use of these
threats to coerce his plea. While Howard recognizes that such
threats are not unlawful, United States v. Pollard, 959 F.2d
1011, 1021 (D.C. Cir. 1992), he claims that there is no evidence
on the record as to whether these threats were made in good
faith or not. However, Howard bore the burden to show that his
motion was meritorious; as such, Howard was charged with showing
that there was no probable cause to charge his mother with a
crime. See United States v. Wright, 43 F.3d 491, 499 (10th Cir.
1994) (holding that, in order to lawfully threaten third persons
with prosecution during plea negotiations, the Government must
have probable cause that those third parties committed the
crimes covered by the threats). The district court was not
required to make his case for him, and even on appeal, Howard
presents no evidence on which to question the Government’s good
faith.
Next, Howard alleges that he credibly asserted his
innocence and that the district court erred in determining that
5
the proper test was whether the Government could prove its case
if it went to trial. In attempting to withdraw from a guilty
plea, a defendant is not required to provide conclusive proof of
innocence. See United States v. Thompson-Riviere, 561 F.3d 345,
353 (4th Cir. 2009). Instead, a defendant's burden is to
credibly assert his legal innocence: that is, to present
evidence that (1) inspires belief and (2) tends to either defeat
the elements in the government's prima facie case or make out a
successful affirmative defense. Id.; see also United States v.
Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (“[T]he defendant
must present a credible claim of legal innocence. In other
words, the defendant must make a factual argument that supports
a legally cognizable defense.” (citations omitted and emphasis
in original)).
Here, Howard avers that he never accepted the
statement of facts at the Rule 11 hearing and that a main
witness against him had since changed his story and expressed
remorse about implicating Howard. However, Howard presented no
evidence aside from his own conclusory testimony to support his
allegations of innocence and new evidence. In fact, in
presenting his case, Howard did not even detail his actual
relationship to the conspiracy, if any, or provide specific
explanation as to his actual knowledge, if any, of the crimes.
He referred to transcripts and emails and phone calls, but
6
failed to actually produce any evidence. Contrary to Howard’s
contentions, asserting his legal and actual innocence and
demanding a trial is insufficient to make a credible claim of
innocence. See Hamilton, 510 F.3d at 1214-15.
Next, Howard contends that he did not have close
assistance of competent counsel. To prevail on this factor,
Howard must demonstrate “(1) that his counsel's performance
‘fell below an objective standard of reasonableness' and
(2) that ‘there [was] a reasonable probability that, but for
counsel's error, he would not have pleaded guilty and would have
insisted on going to trial.’” United States v. Bowman, 348 F.3d
408, 416 (4th Cir. 2003). Under this standard, this court’s
inquiry is limited to whether Howard's counsel “was reasonable
‘under prevailing professional norms,’ and in light of the
circumstances.” Id.
We find that the district court’s conclusions that
Howard’s attorney acted reasonably were not an abuse of
discretion. The court accepted the attorney’s testimony that,
as there was no chance of success at trial, he instead attempted
(and succeeded) in negotiating a beneficial plea agreement.
Howard presented no evidence in district court (or on appeal)
showing that he had a reasonable chance for success at trial.
While Howard further alleges that his attorney improperly
assumed his guilt and failed to properly analyze the
7
consequences of filing a motion to suppress, Howard offers no
analysis of the evidence showing that his attorney’s findings
were erroneous.
We have carefully considered Howard’s remaining claims
of error, and we find no abuse of discretion in the district
court’s ruling. Accordingly, we affirm Howard’s convictions.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
8