Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-1-2009
USA v. Solomon
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1937
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Recommended Citation
"USA v. Solomon" (2009). 2009 Decisions. Paper 1265.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1265
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 07-1937 and 07-1938
___________
UNITED STATES OF AMERICA
v.
WANDA SOLOMON
Appellant.
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 05-cr-00350-2 and 05-cr-00385-3)
District Judge: The Honorable Terrence F. McVerry
___________
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2009
BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
(Filed on: June 01, 2009 )
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Wanda Solomon, was indicted in two separate indictments. The first
indictment charged her with conspiracy to distribute crack cocaine, a violation of 21
U.S.C. § 846 from August 2004 until August 2005. Count One of the superceding
indictment charged her with conspiracy to distribute 5 kilograms or more of cocaine from
1999 until November, 2005, in violation of 21 U.S.C. § 846. Solomon entered into a plea
agreement with the Government, whereby she agreed to plead guilty to one count of drug
conspiracy from each indictment.
The plea agreement included a broad appeal-waiver provision precluding Solomon
from appealing her conviction or sentence unless the Government appealed or the
sentence exceeded the statutory limits or unreasonably exceeded the Guidelines range.
Before sentencing, Solomon filed a motion to withdraw her guilty plea, which was
directed to the count in the superceding indictment. The District Court denied the motion
and sentenced her to 240 months' incarceration, a $100 special assessment, and five years'
supervised release. On appeal, Solomon argues that the District Court should have
granted her motion to withdraw her guilty plea, and also that her sentence was
unreasonable. We will affirm.
It is well-established law that a defendant in a criminal case may waive any right,
even a constitutional right, by means of a plea agreement. An appeal of a denial of a
motion to withdraw a guilty plea constitutes a challenge to a defendant's conviction that
falls within the plain language of an appellate waiver provision. We find her waiver of
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appellate rights enforceable. The language of the plea agreement is clear as to its purpose
and effect. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Solomon did
not enter a conditional plea pursuant to F ED.R.C RIM.P. 11(a)(2) nor did she identify any
issues she wanted preserved for appeal. Solomon signed the agreement, acknowledging
that she had fully discussed it with her attorney. Solomon does not contend that her
appellate waiver was unknowing or involuntary or that it works a miscarriage of justice.
Indeed, her appellate brief is silent on the matter of appellate waiver. Additionally, the
District Court’s colloquy on the appellate waiver was a model of compliance with the
requirements of F ED.R.C RIM.P. 11 and reflects the District Judge’s conscientious effort
to ensure that the waiver was knowing and voluntary. The District Court explained that
Solomon was giving up substantial appellate rights in the plea agreement, and Solomon
confirmed that she understood the effect of the appellate waiver provision.
Furthermore, even when we review the merits, we conclude that Solomon has not
established that the District Court abused its discretion in denying her motion to withdraw
her guilty plea. A district court considers three factors when evaluating a motion to
withdraw a guilty plea: (1) whether the defendant asserts her innocence; (2) the strength
of the defendant’s reasons for withdrawing her plea; and (3) whether the government
would be prejudiced by the withdrawal. The Government is not required to show
prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of
a plea.
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The District Court did not abuse its discretion here. As to the first factor,
Solomon’s claim of innocence is primarily based on her not knowing one of the co-
conspirators until after the conspiracy began. As the District Court acknowledged,
Solomon’s partial lack of familiarity with a co-conspirator is of no legal significance.
The law allows one to be convicted of conspiracy upon evidence that she knew the
essential nature of the illicit plan and her connections with it, without requiring evidence
that she knew all its details or all the participants therein.
Turning to the second factor, Solomon argues that her counsel was deficient. The
District Court concluded that her allegation is without merit. Ineffective assistance of
counsel claims are not generally entertained on direct appeal. Nevertheless, the record
does reflect that Solomon acknowledged during the plea colloquy that she was satisfied
with her counsel’s performance and that she understood the charges and the facts leading
to them. Moreover, Solomon has not pointed to anything but her own post-hoc, self-
serving statements to undermine the District Court’s decision to reject her attack on
counsel.
Accordingly, we will enforce the waiver and will affirm the judgment of the
District Court.
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