Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-26-2007
USA v. Vonsander
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2500
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"USA v. Vonsander" (2007). 2007 Decisions. Paper 1205.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2500
UNITED STATES OF AMERICA
v.
ERICK VONSANDER
a/k/a Harry
Erick Vonsander,
Appellant
Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 03-cr-00002-1)
District Judge: Honorable Joseph J. Farnan, Jr.
Submitted Under Third Circuit LAR 34.1(a)
March 30, 2007
Before: RENDELL, BARRY and CHAGARES, Circuit Judges.
(Filed April 26, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
I.
Erick Vonsander appeals the District Court’s denial of his motion to withdraw his
guilty plea. On September 23, 2004, Vonsander pled guilty to three counts of distribution
of more than five grams of cocaine base. On May 5, 2005, he moved to withdraw his
plea. After a hearing, the District Court denied the motion, by order dated January 24,
2006. Vonsander was later sentenced to 180 months imprisonment, four years supervised
release, and a $300 special assessment. We have jurisdiction over Vonsander’s appeal
pursuant to 28 U.S.C. § 1291.
Vonsander discussed entering a guilty plea with his counsel during their meeting
that occurred nine days prior to the date that Vonsander pled guilty. During that meeting,
counsel gave Vonsander possible “best case” and “worst case” sentencing scenarios. The
best case, if he pled guilty, was a sentence of five and a half to seven years. The worst
case was a sentence of ten to twelve years.
Vonsander sought to withdraw his guilty plea after learning that the guideline
sentencing range listed in the final presentence report was 188 to 235 months. This range
was substantially greater than the 121 to 151 months range calculated in an earlier version
of the report. The final report classified Vonsander as a “career offender,” which
accounted for the increase in his guideline sentencing range. Vonsander’s counsel
admittedly did not advise Vonsander, prior to his guilty plea, of the possibility that he
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would be classified as a “career offender” under the Sentencing Guidelines.
II.
Vonsander argues that the District Court abused its discretion by refusing to allow
him to withdraw his guilty plea. We review a denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).
“Once accepted, a guilty plea may not automatically be withdrawn at the defendant's
whim. Rather, a defendant must have a fair and just reason for withdrawing a plea of
guilty.” United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001) (internal citation
omitted). The defendant bears the substantial burden of demonstrating the existence of a
“fair and just” reason. Jones, 336 F.3d at 252. “A district court must consider three
factors when evaluating a motion to withdraw a guilty plea: (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. The
defendant cannot rest on a “bald” assertion of innocence, but must support his assertion
with facts in the record. Id. at 252-53. If the defendant fails to show that there is a “fair
and just reason” for withdrawing his plea, then the district court may deny the motion
even if no prejudice to the government is shown. United States v. Harris, 44 F.3d 1206,
1210 (3d Cir. 1995) (citing United States v. Martinez, 785 F.2d 111 (3d Cir. 1986)).
Vonsander argues that he adequately asserted his innocence before the District
Court as to two of the three counts of distribution of cocaine base. This assertion, he
contends, is supported by his testimony at the withdrawal of plea hearing that he only
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entered a guilty plea because his codefendant went to trial and lost and Vonsander then
feared that he might also lose at trial. Vonsander also testified that he told his counsel
that he was innocent of two of the counts. However, in his plea colloquy, Vonsander
admitted that he had assisted in the distribution of cocaine base on the three occasions at
issue. At the hearing on his motion to withdraw his guilty plea, he reaffirmed that these
prior statements were truthful.
Vonsander also argues that he should have been allowed to withdraw his plea
because he did not adequately understand the plea agreement. He contends that he did
not understand at the time he entered his plea that he could be subject to a sentence of
greater than seven years. However, Vonsander’s counsel testified at the withdrawal of
plea hearing that he reviewed the plea agreement with Vonsander “word for word” and
that he read each paragraph to Vonsander twice before Vonsander entered his guilty plea.
App. 134. The plea agreement clearly states that “if the Court decides not to follow any
stipulations or recommendation in this memorandum of plea agreement or if the
defendant does not receive the benefits he expects from any such stipulation or
recommendation, the defendant may not withdraw the guilty plea.” App. 135.
Furthermore, Vonsander stated under oath during his plea colloquy that he understood the
charges against him, the terms of the plea agreement, and the rights that he was giving up
by pleading guilty. He also stated during the colloquy that he understood that it was not
possible for anyone to provide any guarantees as to what his sentence would be until the
court had reviewed the presentence report.
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Vonsander finally maintains that he could not understand the plea agreement
because he is not a native English speaker. However, Vonsander refused the assistance of
an interpreter during the evidentiary hearing on the withdrawal of his guilty plea. His
counsel stated at that hearing that “[m]y client does not want the interpreter. He says that
he does understand everything that’s going on, I guess.” App. 55. Vonsander confirmed
that he did not wish to use the interpreter because he understood “everything that’s going
on.” Id. Vonsander requested the interpreter’s assistance at the hearing only for the
translation of written documents. As previously noted, Vonsander’s counsel testified that
Vonsander did not review the written plea agreement on his own, but rather that counsel
read the plea agreement to Vonsander, twice.
The District Court denied Vonsander’s motion to withdraw his guilty plea on the
grounds that Vonsander failed to proffer sufficient evidence of his innocence and his
reasons for withdrawing his plea. We conclude that the District Court did not abuse its
discretion in denying the motion. Vonsander had the burden to show the existence of a
fair and just reason for withdrawing his plea of guilty. After conducting an evidentiary
hearing on the matter, the District Court concluded that Vonsander had failed to meet this
burden. We see no reason to disturb that conclusion.
III.
Accordingly, for the reasons set forth above, we will affirm the District Court’s
denial of Vonsander’s motion to withdraw his guilty plea.
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