In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2749
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SIMON A. LUNDY, SR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-CR-10064—Michael M. Mihm, Judge.
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ARGUED FEBRUARY 16, 2007—DECIDED MAY 1, 2007
____________
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. On the afternoon of Friday,
September 16, 2005, with a Monday trial looming, Simon
Lundy pled guilty to one count of conspiring to possess and
distribute more than five kilograms of cocaine and more
than 50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841 and 846. On January 3, 2006, Lundy moved to
terminate his attorney and to withdraw his guilty plea,
claiming that his attorney’s ineffective assistance ren-
dered the plea involuntary. The district court conducted
an evidentiary hearing and concluded that Lundy had
voluntarily pled guilty. Accordingly, it denied Lundy’s
motion to withdraw the plea, and Lundy appeals. For the
following reasons, we affirm the district court’s ruling.
2 No. 06-2749
I. BACKGROUND
On September 16, 2005, the Friday morning before he
was scheduled to go to trial, Simon Lundy met with his
attorney, Thomas Iben, to discuss the possibility of
pleading guilty.1 Iben had called for the meeting, and he
met Lundy in a cell block of the courthouse to discuss the
pros and cons of entering a guilty plea. Iben enlisted Rob
Alvarado, Lundy’s former federal defender, to help him
explain that the government’s case against Lundy had
strengthened since Alvarado ceased representing him. Iben
recruited Alvarado for this job because Lundy trusted
Alvarado and because Alvarado had previously advised
Lundy to go to trial. During a discussion that lasted about
an hour, both Iben and Alvarado recommended that Lundy
plead guilty. At some point in the discussion, Iben and
Lundy began arguing and Iben threw papers at Lundy
through the cell door. Iben apologized for his outburst, and
he and Lundy resumed their discussion. When Iben and
Alvarado left, Lundy still wanted to go to trial.
Around 4:00 that afternoon, Iben met with Lundy alone.
Iben advised him that if he entered a guilty plea, his
sentence would be based on the amount and type of the
drugs he possessed. Iben then told Lundy that the gov-
ernment had made a concession about the strength of its
drug amount evidence. Based on the concession, Lundy
decided to plead guilty. According to Iben, he and Lundy
reviewed the plea agreement very quickly because it was
late on Friday, and the court wanted to know whether to
call off the jurors.
1
Iben was Lundy’s third attorney. Lundy’s first attorney, a
federal defender, withdrew because of a conflict of interest
stemming from his office’s prior representation of a cooperating
government witness. Lundy’s second attorney withdrew at
Lundy’s request.
No. 06-2749 3
Immediately after Lundy agreed to plead guilty, the
district court conducted a Rule 11 hearing, where Lundy
indicated that he was satisfied by Iben’s advice and
representation, that he had read the plea agreement and
discussed it with Iben, and that he understood the terms
of the agreement. The district court reviewed salient
paragraphs of the plea agreement, and Lundy indicated
that he understood each one. Lundy also agreed that no
one had made any promises or assurances to him other
than those contained in the plea agreement and that no
one had forced him to plead guilty.
The district court asked what had changed Lundy’s mind
about pleading guilty, given that he previously had
insisted on going to trial. Iben responded that “there were
some tacit concessions on [the Government’s] part as far as
how good their evidence was and of course sometimes
the evidence—you see less at the sentencing than you do
at a full trial.” The court then reviewed a range of possible
sentences based on different relevant conduct scenarios,
emphasizing that the court would resolve the dispute
about drug type and quantity.
At that point, the government stated that its best
evidence as to the amount and type of drugs consisted of
admissions Lundy made to a former cell mate in Knox
County jail. The Assistant U.S. Attorney remarked that
she “told Mr. Iben [she] would be willing to say this to the
Court.” The government made no representation about
the evidence it intended to present at sentencing.
On December 12, 2005, the Probation Office issued
Lundy’s initial presentence investigation report, which
documented drug amounts in excess of eight kilograms
of powder cocaine and 500 grams of cocaine base. On
January 3, 2006, Lundy filed a motion to terminate his
attorney and withdraw his guilty plea. Lundy argued that,
under the totality of the circumstances, his plea was not
4 No. 06-2749
knowing and voluntary. He claimed that he did not have
an adequate opportunity to review the plea agreement
with his attorney and that he thought his sentence
would be based solely on the amount of powder cocaine
that he admitted during the change of plea hearing.
Lundy also argued that Iben’s methods of persuading
him to plead guilty were objectively unreasonable, thus
constituting ineffective assistance of counsel. Lundy
highlighted three facts that allegedly demonstrated Iben’s
deficiency: 1) Iben’s enlistment of Lundy’s former attorney,
who had a conflict of interest, to help convince Lundy to
plead; 2) Iben’s throwing papers at Lundy; and 3) Iben’s
use of a worthless government concession as a selling
point.
On May 12, 2006, the district court conducted an eviden-
tiary hearing on Lundy’s motion to withdraw. The court
heard testimony from Iben and Alvarado, but Lundy did
not testify. Iben described his discussion with Lundy about
the government’s concession as follows:
I also told him that I had had some discussions with
the Government[,] and they were willing to concede
in all likelihood that their best evidence as to weight
and type of substance came from a particular witness
who was allegedly a snitch of theirs from when he was
housed with Lundy at the Knox County jail[,] and
that’s what we talked about and that was one of the
bigger concerns because Mr. Lundy’s big concern was
that the main witness, Wakefield, was not telling the
truth about what all Lundy had done.
After the hearing, the district court found that Lundy
knew his sentence would not be based only on the amount
of powder cocaine he admitted at his plea hearing. The
district court noted that Lundy’s hearing included an
extensive discussion about the fact that the drug amount
No. 06-2749 5
and type remained in dispute, and Lundy agreed that the
district court would resolve the disputes at sentencing.
Additionally, the district court found that Iben per-
formed reasonably and that Lundy had sufficient time to
review the plea agreement. The court did express concern
that Alvarado’s presence at the September 16 meeting
between Iben and Lundy had the appearance of impropri-
ety, but found that it was not inappropriate under the
circumstances. Accordingly, the district court denied
Lundy’s motion to withdraw the guilty plea.
On June 15, 2006, the district court conducted Lundy’s
sentencing hearing. The government presented testimony
from Kenneth Zimmerman, Lundy’s former cell mate, and
Diondre Wakefield, another cooperating witness.2 The
district court accepted the drug amounts that Wakefield
and Zimmerman described and determined that Lundy
was responsible for more than eight kilograms of cocaine
and 500 grams of cocaine base, giving Lundy a base offense
level of 34. An obstruction of justice enhancement in-
creased the offense level to 36, and the court sentenced
Lundy to 188 months in prison, the low end of the recom-
mended guidelines range.
II. DISCUSSION
Lundy argues that the district court erred in denying his
motion to withdraw the guilty plea. This Court has
2
Wakefield was a Peoria drug dealer who engaged in drug
transactions with Lundy. According to Lundy, he engaged in
only two transactions with Wakefield, involving 13.5 ounces of
cocaine. Lundy was concerned that Wakefield would testify
falsely to reduce his own 22-year sentence. Indeed, Wakefield
testified that he and Lundy engaged in transactions involving
far more than 13.5 ounces of cocaine.
6 No. 06-2749
recognized that a defendant’s right to withdraw a guilty
plea is not absolute. United States v. Underwood, 174 F.3d
850, 852 (7th Cir. 1999). A guilty plea, once accepted by
the court, may be withdrawn only for a “fair and just
reason,” and the burden of justifying relief rests with the
defendant. Fed. R. Crim. P. 11(d)(2)(B); Underwood, 174
F.3d at 852.
Ineffective assistance of counsel can render a plea
agreement involuntary, and is therefore a valid basis for
withdrawing a guilty plea. See Hill v. Lockhart, 474 U.S.
52, 57 (1985); United States v. Wallace, 276 F.3d 360, 366
(7th Cir. 2002). To demonstrate ineffective assistance in
this context, a defendant must show both that counsel’s
performance was objectively unreasonable and that, but for
counsel’s errors, the defendant would not have pled guilty.
United States v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005).
When determining whether a defendant entered a plea
involuntarily, courts consider the totality of the circum-
stances. See, e.g., United States v. Bradley, 381 F.3d 641,
645 (7th Cir. 2004); United States v. LeDonne, 21 F.3d
1418, 1423 (7th Cir. 1994).
We review a district court’s denial of a motion to with-
draw a guilty plea based on ineffective assistance for an
abuse of discretion. United States v. Merriweather, 294
F.3d 930, 931 (7th Cir. 2002). The Court upholds factual
findings concerning whether a defendant demonstrated a
“fair and just” reason to withdraw his guilty plea unless
those findings are clearly erroneous. United States v.
Logan, 244 F.3d 553, 557 (7th Cir. 2001). “[A] district
court is generally justified in discrediting the proffered
reasons for the motion to withdraw and holding the
defendant to [his] admissions” during the plea colloquy.
United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)
(citation and quotation omitted).
Lundy identifies several factors that he claims add up to
ineffective assistance of counsel. First, Lundy alleges that
No. 06-2749 7
the general atmosphere in which he agreed to plead
guilty—an eleventh hour meeting with his attorney as the
clock ticked down to trial—was conducive to coercion.
Lundy emphasizes that he had continuously expressed his
desire to go to trial, and it was not until the last minute
that his attorney began pushing him to make a deal.
Nevertheless, the district court properly found that the
timing of Lundy’s plea did not provide a reason for with-
drawing it. Lundy acknowledged that he understood the
terms of the plea agreement, and the district court re-
viewed the salient terms during the Rule 11 hearing. That
the agreement was made close to trial is irrelevant so
long as Lundy understood it and voluntarily entered into
it.
Second, Lundy argues that it was improper for Iben to
call in Alvarado to discuss the possibility of pleading with
Lundy, given that Alvarado had a conflict of interest.
While the district court recognized that Iben’s enlistment
of Alvarado could have appeared improper, it accepted
Iben’s reasons for doing so, i.e., that Lundy trusted
Alvarado and that Alvarado had previously advised him
to go to trial. We also note that Alvarado’s conflict was
not personal. Rather, the Federal Defender’s Office had
previously represented a cooperating government wit-
ness in an unrelated matter. Moreover, the district court
found that Alvarado’s presence had no effect on Lundy’s
decision to plead guilty. That finding was not clearly
erroneous, especially since Lundy still planned to go to
trial at the time Alvarado left.
Third, Lundy claims that his morning argument with
Iben, in which Iben threw papers at him, demonstrated
Iben’s ineffectiveness. While we do not condone Iben’s
behavior, the district court did not abuse its discretion in
finding that Iben’s overall performance was reasonable. In
any event, Alvarado testified that Iben and Lundy “settled
back down and had a discussion about the facts and the
law of the case” following the argument, and Iben apolo-
8 No. 06-2749
gized to Lundy for his outburst. Furthermore, there is no
evidence that the argument coerced Lundy into pleading
guilty because he still planned to go to trial at the end of
the morning meeting.
Finally, Lundy contends that Iben trumpeted the govern-
ment’s “worthless concession” as something that would
benefit Lundy at sentencing in order to induce him to
plead guilty. The government’s statement at the plea
hearing shows that it made Lundy no false promises to
induce a guilty plea. What remains unclear, however, is
what Iben represented to Lundy. He told the district court
that the government’s concession is what finally con-
vinced Lundy to enter into a plea agreement, but he did
not explain how or why it changed Lundy’s mind. Iben also
stated that the concession went to the strength of the
government’s evidence, and that he hoped some of the
evidence regarding drug amounts might not be used if
Lundy forewent a trial. However, Iben did not indicate
whether he told Lundy that the government would not
present Wakefield’s testimony.
Because Lundy did not testify at the hearing, we cannot
determine whether Iben inflated the value of the govern-
ment’s concession. Nor do we know what Lundy thought
the concession meant. If Iben merely hoped or predicted
incorrectly that the government would not put on its
weaker evidence, his performance was not deficient. See,
e.g., United States v. Martinez, 169 F.3d 1049, 1053 (7th
Cir. 1999) (recognizing that a mere inaccurate prediction
of a sentence does not constitute deficient performance).
On the other hand, if defense counsel made inaccurate
representations or grossly mischaracterized the potential
sentence, then his performance might have been deficient.
Id. Significantly, Lundy acknowledged at his change of
plea hearing that no one had made him any promises other
than those contained in the agreement. Ultimately,
Lundy’s failure to testify doomed his claim, because the
No. 06-2749 9
burden of justifying relief was his at all times. Underwood,
174 F.3d at 852. In short, the district court did not
abuse its discretion in holding that Lundy failed to pro-
vide a fair and just reason for withdrawing his plea.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
ruling.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-07