Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-6-2005
USA v. Wilder
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2746
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2746
____________
UNITED STATES OF AMERICA
v.
GARY KENNETH WILDER, JR. a/k/a JAWS
Gary Kenneth Wilder, Jr.,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 03-cr-00072-13)
District Judge: Honorable Joy Flowers Conti
____________
Submitted Under Third Circuit LAR 34.1(a)
April 1, 2005
Before: ALITO, SMITH and FISHER, Circuit Judges.
(Filed: June 6, 2005)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Appellant Gary Kenneth Wilder, Jr., appeals from an order of the United States
District Court for the Western District of Pennsylvania, entered June 15, 2004, denying
his motion to withdraw a previously entered guilty plea. Appellant also challenges his
sentence under United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005). As explained
herein, we will vacate the denial of the motion to withdraw the guilty plea, vacate the
sentence and remand for further proceedings. Because the underlying course of events is
known to the parties, we focus here on the rationale for our decision.
I.
“We review a district court’s ruling denying a defendant’s motion to withdraw his
guilty plea before sentencing pursuant to an abuse of discretion standard.” United States
v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (citing United States v. Harris, 44 F.3d 1206,
1210 (3d Cir.1995)). A district court commits an abuse of discretion when it fails to
follow or misapplies controlling precedent. See United States v. Mitchell, 365 F.3d 215,
247 (3d Cir. 2004); see also Planned Parenthood of Central New Jersey v. Attorney
General of the State of New Jersey, 297 F.3d 253, 265 (3d Cir. 2002) (“a court abuses its
discretion when its ruling is founded on an error of law or a misapplication of law to the
facts”).
2
Fed. R. Crim. P. 11(d)(2)(B)1 provides that “[a] defendant may withdraw a plea of
guilty ... (2) after the court accepts the plea, but before it imposes sentence if: ... (B) the
defendant can show a fair and just reason for requesting the withdrawal.” Most recently
in Jones, we explained that “[o]nce a [district] court accepts a defendant’s guilty plea, the
defendant is not entitled to withdraw that plea simply at his whim. Rather, pursuant to
[Fed. R. Crim P. 11(d)], a defendant must have a ‘fair and just reason’ for withdrawing a
plea of guilty.” 336 F.3d at 252 (internal citations omitted). In a series of cases, this
Court has explained that, in evaluating whether a defendant has shown “fair and just
reason” for the withdrawal, a district court “must consider three factors ... (1) whether the
defendant asserts his innocence; (2) the strength of the defendant’s reasons for
withdrawing the plea; and (3) whether the government would be prejudiced by the
withdrawal.” Id.; see also United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001)
(“We look to three factors to evaluate a motion to withdraw: [listing the factors]”);
Harris, 44 F.3d at 1210 n.1 (listing the factors); United States v. Jones, 979 F.2d 317, 318
(3d Cir. 1992) (“We have held that three factors must be considered when a district court
evaluates a motion to withdraw a guilty plea: [listing the factors]”), superceded by statute
1
Prior to 2002, Fed. R. Crim. P. 32(e) governed withdrawal of a guilty plea. As
part of the “general restyling of the Criminal Rules” which occurred in 2002, the
substance of Rule 32(e) was moved to Rule 11(d) & (e). See Advisory Committee Notes
to Rule 32 – 2002 Amendments; see also Advisory Committee Notes to Rule 11 – 2002
Amendments. This change did not affect the analysis applicable to a motion to withdraw
a guilty plea, and thus precedent referring to Rule 32(e) continues to be authoritative.
3
on other grounds; United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989) (“A defendant
must have a fair and just reason for withdrawing a plea of guilty. We look to three factors
to evaluate his motion to withdraw: [listing the factors]”); United States v. Martinez, 785
F.2d 111, 114 (3d Cir. 1986) (“In evaluating a motion under Rule 32(d), we have looked
primarily to three factors ... The three factors provide guideposts in evaluating whether a
district court abused its discretion in determining whether a criminal defendant has
asserted a ‘fair and just’ reason for withdrawal of a plea of guilty ...”); United States v.
Trott, 779 F.2d 912, 915 (3d Cir. 1986) (“a defendant must have a ‘fair and just reason’
for withdrawing a plea. In evaluating such a motion, we have looked primarily to three
factors: [listing the factors]”) (internal citation omitted).2 This analysis requires that a
district court consider each factor, but critically, does not make any one mandatory such
that failure to establish one will necessarily dictate rejection of the motion. That the
analysis is one of consideration and balancing is shown by its application in Jones where
we considered the defendant’s argument on the second factor, despite having already
concluded that he had failed to meaningfully assert his innocence. See 336 F.3d at 252-
255.3
2
Consideration of the third factor – prejudice to the government – may be
dispensed with where a defendant has not made a showing of “fair and just reason” to
withdraw the guilty plea. See e.g., Jones, 336 F.3d at 255; Martinez, 785 F.2d at 115-116.
3
In the earlier Jones decision, 979 F.2d at 318, although the Court stated that “[t]he
defendant must [] not only reassert innocence, but give sufficient reasons to explain why
contradictory positions were taken before the district court and why permission should be
given to withdraw the guilty plea,” it also spoke of “considering” each of the three
4
II.
In denying the motion, the District Court first took note of the government’s
concession that it would suffer no prejudice on account of the withdrawal. The District
Court also concluded that Appellant’s argument regarding ineffective assistance of
counsel “had merit,” and thus supported his desire to withdraw the guilty plea. The
motion was denied, however, on the ground that Appellant had failed to meaningfully
assert his innocence. In the course of its analysis, the District Court made clear that it
considered each of the three factors identified by this Court to be mandatory. See Mem.
Op. at 11 (titling section “Defendant must meet all three factors in order to withdraw his
guilty plea”); id. at 12 (noting and explicitly agreeing with the government’s contention
that “defendant must meet all of the factors in order to withdraw his plea”); id. at 17
(“Because a criminal defendant must meet all three prongs of the framework in order to
withdraw his guilty plea, and because the court finds that defendant failed to
meaningfully assert his innocence, the court need not address the second and third prongs
of the framework [applicable to the ineffective assistance of counsel claim].”). While we
see no error in the District Court’s conclusion that Appellant failed to meaningfully assert
his innocence, because we perceive that the District Court conducted its analysis under
the mistaken impression that each of the three factors was mandatory, we must find that
the District Court abused its discretion in denying the motion, and accordingly, we will
factors. See id.
5
vacate the judgment of conviction and remand for further consideration of Appellant’s
motion to withdraw the guilty plea under the correct analysis.
III.
By letter dated March 3, 2005, Appellant indicated a desire to challenge his
sentence under Booker. The sentencing issues that Appellant raises are best determined
by the District Court in the first instance. Accordingly, we will vacate the sentence and
further instruct the District Court that if, on remand, Appellant’s motion to withdraw the
guilty plea is again denied under the appropriate analysis, Appellant should be
resentenced in accordance with Booker.
6