United States v. Robinson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2009 Decided December 1, 2009

No. 07-3127

UNITED STATES OF AMERICA,
APPELLEE

v.

JONTE ROBINSON, ALSO KNOWN AS TAY,
APPELLANT

Consolidated with 08-3010, 08-3036

Appeals from the United States District Court
for the District of Columbia
(No. 04cr00128-13)

Kristen Grim Hughes, appointed by the court, argued the
cause for the appellants. Edward C. Sussman and Mary E.
Davis, appointed by the court, were on brief.
Amanda J. Winchester, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney at the time the brief was filed, and Roy W.
McLeese III, Elizabeth Trosman, and John Philip Dominguez,
Assistant United States Attorneys, were on brief.
 2

Before: HENDERSON, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Jonte D.
Robinson, Tommie Dorsey and Kenneth Dodd pleaded guilty to
drug and racketeering conspiracies pursuant to “wired” plea
agreements with the Government. Before sentencing, they
moved to withdraw their guilty pleas. The district court denied
their motions and sentenced them in accordance with their plea
agreements. On appeal,1 they contend that the district court
failed to accept, and therefore left them the unfettered power to
withdraw, their guilty pleas. They contend in the alternative that,
if the district court accepted their pleas, it abused its discretion
by denying their motions to withdraw them and by not
conducting an evidentiary hearing thereon. We conclude that the
district court accepted the appellants’ guilty pleas and did not
abuse its discretion in denying their motions to withdraw and
their hearing request. Accordingly, we affirm.
I.
On October 19, 2005, a grand jury issued a superseding
indictment charging nineteen defendants with, inter alia, drug
and racketeering conspiracies, drug offenses and homicides.
Superseding Indictment, United States v. Franklin, Cr. No. 04-
128 (D.D.C. Oct. 19, 2005) (Indict.). The defendants were
separated into three groups for trial. The third group included
the appellants and a co-defendant named Larry Gooch, Jr. If
convicted, the appellants faced life sentences and Gooch faced
death.

1
This court consolidated the appellants’ appeals sua sponte.
Order, United States v. Robinson, No. 07-3127 (D.C. Cir. May 20,
2008).
 3

On January 17, 2007, after jury selection had begun, the
appellants entered into plea agreements2 with the Government
under Federal Rule of Criminal Procedure (Rule) 11(c)(1)(C).3
The agreements provided that each appellant would plead guilty
to a drug conspiracy, in violation of 21 U.S.C. § 846, and a
racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(d)
and 1963. They further provided that the racketeering pleas
would require the appellants to admit to overt acts involving,
inter alia, drugs, firearms and—for Robinson and
Dorsey—murder. In return, the Government would agree to
twenty-five-year prison sentences followed by five-year
supervised-release terms. The plea agreements were “wired,”
which meant each was contingent on the others.

2
Gooch proceeded to trial. Judgment, United States v. Gooch, Cr.
No. 04-128-23 (D.D.C. Oct. 18, 2007). A jury found him guilty on
twenty-six counts and the court sentenced him to life in prison. Id.
3
Federal Rule of Criminal Procedure 11(c)(1)(C) provides in
relevant part:
An attorney for the Government and the defendant’s
attorney . . . may discuss and reach a plea agreement.
The court must not participate in these discussions. If
the defendant pleads guilty or nolo contendere to
either a charged offense or a lesser or related offense,
the plea agreement may specify that an attorney for
the Government will: . . . agree that a specific
sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision
of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a
recommendation or request binds the court once the
court accepts the plea agreement).
 4

Later that day, the district judge held a Rule 11 plea
colloquy4 with each appellant individually while the other two
remained in the courtroom. Transcript of Plea, United States v.
Dodd, Cr. No. 04-128-06, -13, -21 (D.D.C. Jan. 17, 2007) (Plea
Tr.). Dodd went first, then Robinson, then Dorsey. Id. Each
appellant pleaded guilty to the two conspiracy counts. Id.
Beginning in May 2007, the appellants filed several motions
to withdraw their guilty pleas, all of which the district court
denied. United States v. Robinson, 498 F. Supp. 2d 328 (D.D.C.
2007); Transcript of Sentence, United States v. Dodd, Cr. No.
04-128-06, -13, -21, at 24 (D.D.C. May 5, 2008) (Sent. Tr.). On
May 5, 2008, the court sentenced each appellant to twenty-five
years in prison followed by five years of supervised release,
pursuant to their respective plea agreements. This appeal
followed.
II.
The appellants want to withdraw their guilty pleas. Under
Rule 11, a defendant may withdraw his guilty plea under any of
three circumstances. First, “before the court accepts the plea,”
the defendant may withdraw it “for any reason or no reason.”
Fed. R. Crim. P. 11(d)(1). Second, if the court has accepted the
plea, the defendant may withdraw it if he “show[s] a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). Third, if the court rejects a plea agreement made
under Rule 11(c)(1)(A) or (C), it must permit the defendant to
withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(A).

4
Before accepting a guilty plea, the court must inform the
defendant of his trial rights, the nature of the charges against him, the
possible penalties and the impact of the United States Sentencing
Guidelines (Guidelines). Fed. R. Crim. P. 11(b). It must also
determine that the plea is voluntary and based on fact. Id.
 5

A. Acceptance of Guilty Pleas
The appellants first argue that the district court failed to
accept their guilty pleas and they are thus entitled to withdraw
them “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1).
The district court rejected this argument, concluding that it had
accepted each appellant’s plea. Robinson, 498 F. Supp. 2d at
332-33. We review the district court’s decision de novo. United
States v. Jones, 472 F.3d 905, 908-09 (D.C. Cir. 2007).
Guilty pleas are distinct from plea agreements. United
States v. Hyde, 520 U.S. 670, 677-78 (1997) (rules “explicitly
envision” guilty plea before performance of plea agreement);
United States v. Jones, 472 F.3d at 908 (“[G]uilty pleas exist
independently from plea agreements on which they rest . . . .”)
(citing Hyde, 520 U.S. at 677). Accordingly, a court may accept
a defendant’s guilty plea and temporarily refrain from accepting
or rejecting a corresponding plea agreement. See Fed. R. Crim.
P. 11(c)(3)(A) (“To the extent the plea agreement is of the type
specified in Rule 11(c)(1)(A) or (C), the court may . . . defer a
decision until the court has reviewed the presentence report.”);
Hyde, 520 U.S. at 678; Jones, 472 F.3d at 908. In this case, the
district court refrained from accepting or rejecting the
appellants’ plea agreements at the Rule 11 hearing, pending
presentence reports. See Plea Tr. at 8-9. The appellants contend
that, in so doing, the court failed to clearly distinguish between
their plea agreements and their guilty pleas, which left them
with the belief that it had accepted neither.
In Jones we held that, although the district court had used
language “loosely” at the defendant’s plea hearing, the transcript
viewed as a whole manifested that the court had accepted the
defendant’s guilty plea and left him “no reasonable basis” for
thinking otherwise. 472 F.3d at 909. The same is true here.
While the district court at times used the terms “plea” and “plea
agreement” interchangeably, e.g., Plea Tr. at 18, 24-25, 29, 35,
42, the transcript of the plea hearing, read in its entirety,
 6

establishes that the court accepted the appellants’ guilty pleas.
The court asked each appellant how he pleaded as to the two
separate counts. Plea Tr. at 25, 37-38, 46. After each appellant
twice responded, “Guilty,” the court told him that it “accept[ed]”
his plea. Id. at 25, 38, 46. Despite the court’s occasional
imprecision, therefore, it plainly accepted the appellants’ guilty
pleas and left them “no reasonable basis” for thinking otherwise.
Jones, 472 F.3d at 909.
The appellants also contend that the acceptances were
ineffective because the court referred to them as “conditional.”
Reply Br. 3. That argument failed in Jones and it fails here. As
was true in Jones, “acceptance was ‘conditional’ only in that
under Rule 11(d)(2)(A) the court had to give [the defendant] an
opportunity to withdraw the plea if it ultimately rejected the plea
agreement. . . . [S]uch conditions subsequent do not nullify
otherwise valid acceptances.” Jones, 472 F.3d at 908 (citing
Hyde, 520 U.S. at 679-80). So too, here, the court’s use of the
term “conditional” did not nullify its acceptance of the
appellants’ guilty pleas. Rather, it appropriately signified that,
if the court subsequently rejected their plea agreements, the
appellants would be permitted to withdraw their guilty pleas. See
id.; Fed. R. Crim. P. 11(d)(2)(A). Accordingly, we conclude that
the district court accepted the appellants’ pleas.
B. Denial of Motions to Withdraw Pleas
Granting, arguendo, that the district court accepted their
guilty pleas, the appellants next contend that it erred in denying
their motions to withdraw them. Pursuant to Rule 11(d)(2)(B),
a district court may grant a presentence motion to withdraw a
guilty plea if “the defendant can show a fair and just reason.”
We review a district court’s denial of such a motion for abuse of
discretion. United States v. Curry, 494 F.3d 1124, 1128 (D.C.
Cir. 2007). We focus on three factors: “(1) ‘whether the
defendant has asserted a viable claim of innocence’; (2)
‘whether the delay between the guilty plea and the motion to
 7

withdraw has substantially prejudiced the government’s ability
to prosecute the case;’ and (3) ‘whether the guilty plea was
somehow tainted.’” United States v. Taylor, 139 F.3d 924, 929
(D.C. Cir. 1998) (quoting United States v. Ford, 993 F.2d 249,
251 (D.C. Cir. 1993)). The third factor is the “most important,”
Ford, 993 F.2d at 251, so we address it first. See United States
v. Cray, 47 F.3d 1203, 1208 (D.C. Cir. 1995).
1. Taint
All three appellants argue that the district court
impermissibly intruded on the plea-bargaining process. Their
argument relies on Rule 11(c)(1), which provides, “An attorney
for the Government and the defendant’s attorney . . . may
discuss and reach a plea agreement. The court must not
participate in these discussions.” In support of their argument,
the appellants quote statements the court made at the plea
hearing regarding the bargain to which the parties had agreed.
Appellants’ Br. 18. Several related to the court’s task of
calculating the applicable Guidelines range in the context of a
Rule 11(c)(1)(C) plea agreement. Plea Tr. at 8-10. As the court
pointed out, however, its calculation would not alter the terms
of their respective agreements. Plea Tr. at 19. Other statements
put the parties on notice the court was considering rejecting the
plea agreements, as is its prerogative under Rule 11(c)(5). None
of these statements constitutes improper participation by the
court in plea agreement discussions.
The appellants invoke United States v. Baker, which
articulates reasons for prohibiting judicial participation in the
plea bargaining process—specifically that it risks coercion,
compromises a judge’s impartiality and gives a misleading
impression as to the judge’s role. 489 F.3d 366, 370 (D.C. Cir.
2007). But the statements referenced above do not relate to
Baker’s concerns. They did not coerce the appellants into their
plea agreements; the parties had agreed to plead guilty before
the statements occurred. They were not partial to one party;
 8

instead they conveyed skepticism regarding the agreement both
sides wanted. They did not convey a misleading impression as
to the court’s role; to the contrary, they spoke to a quintessential
judicial function. See United States v. Kraus, 137 F.3d 447, 454
(7th Cir. 1998) (district judge’s assessment of plea agreement in
light of facts and Guidelines constituted “exactly the kind of
‘active evaluation’ of the plea agreement that Rule 11 and the
cases interpreting it envision” (quoting United States v. Crowell,
60 F.3d 199, 201-02, 203-04 (5th Cir. 1995))). In sum, the
district court did not improperly participate in the plea
agreement process.
The appellants also argue that their guilty pleas were tainted
based on the United States Attorney’s alleged coercion. They
contend that they were coerced into accepting wired plea
agreement offers with short shelf lives while they were all
confined in a holding cell. United States v. Holland is on point.
117 F.3d 589 (D.C. Cir. 1997). In that case, two brothers entered
into a wired plea agreement “on the eve of trial” on drug
conspiracy charges. Id. at 592. After pleading guilty, one brother
moved to withdraw his plea, claiming that the last-minute wired
plea offer involving his brother was coercive. Id. at 593. We
rejected that argument, holding that, although wired plea
agreements “‘could be coercive, especially when family
members are involved,’” the Rule 11 proceeding adequately
addressed any possible coercion in that case. Id. at 594 (quoting
United States v. Hernandez, 79 F.3d 1193, 1194 (D.C. Cir.
1996)). We further held that “[a] district court does not have to
‘undertake a special voluntariness inquiry when faced with a
wired plea.’” Id. (quoting United States v. Farley, 72 F.3d 158,
164 (D.C. Cir. 1995)). Just as the plea procedure in Holland
sufficed to dispel any coercion, so too did the procedure here.
All three defendants affirmed during their plea colloquies that
they were entering the pleas of their own free will. Plea Tr. at
23-24, 32-33, 46. The court was aware of the wired nature of the
plea agreements, see, e.g., id. at 29, 41, and repeatedly probed
 9

each appellant’s acquiescence to their terms. See generally Plea
Tr. Nothing about their particular circumstances required the
district court to seek further assurances of voluntariness. In
short, the appellants’ wired plea agreements did not taint their
guilty pleas.
Next, the three appellants argue that their pleas were tainted
because the district court did not inform them that they would be
unable to withdraw their pleas unless it rejected their plea
agreements. None of the cases the appellants cite,5 however, can
be fairly read to impose that obligation on the district court. Nor
have we discovered any authority to that effect.6 The appellants’
pleas were not tainted by the court’s failure to comply with a
nonexistent obligation. Relatedly, the appellants argue that the
district court improperly intimated that they could withdraw
their guilty pleas any time they wished. It did no such thing. The
court merely noted that, should any of the appellants move to
withdraw his guilty plea, he would breach his wired plea
agreement. Plea Tr. at 21, 29, 41-42. This was an explicit term
in all three plea agreements. Plea Agreement, United States v.
Dodd, Cr. No. 04-128-06, at 5 (D.D.C. Jan. 17, 2007) (Dodd
Plea Agr.); Plea Agreement, United States v. Robinson, Cr. No.
04-128-13, at 5 (D.D.C. Jan. 17, 2007) (Robinson Plea Agr.);
Plea Agreement, United States v. Dorsey, Cr. No. 04-128-21, at
6 (D.D.C. Jan. 17, 2007) (Dorsey Plea Agr.).
In addition to the arguments all three appellants make,
appellant Dodd contends that his guilty plea is tainted by virtue

5
Appellants’ Br. 17 (citing Jones, 472 F.3d 905; Holland, 117
F.3d 589; Cray, 47 F.3d 1203).
6
In contrast, Rule 11(c)(3)(B) provides, “To the extent the plea
agreement is of the type specified in Rule 11(c)(1)(B), the court must
advise the defendant that the defendant has no right to withdraw the
plea if the court does not follow the recommendation or request.”
 10

of amendments to the Guidelines. After Dodd pleaded guilty,
but before the district court sentenced him, the United States
Sentencing Commission (Commission) amended the Guidelines
by reducing the sentences for most cocaine base offenses. See
Sentencing Guidelines for the United States Courts, 72 Fed.
Reg. 28,558, 28,571-73 (May 21, 2007). According to Dodd,
“he should be allowed to withdraw his plea as, in retrospect, it
was not based on consideration of the Sentencing Guidelines
applicable to a disposition of his case.” Appellants’ Br. 30.
We disagree. Even though Dodd may have considered the
Guidelines in deciding whether to accept the Government’s offer
or go to trial,7 the district court was not obliged to set aside his
guilty plea after the Commission amended them. In Brady v.
United States, the Supreme Court held that “[a] defendant is not
entitled to withdraw his plea merely because he discovers long
after the plea has been accepted that his calculus
misapprehended . . . the likely penalties attached to alternative
courses of action.” 397 U.S. 742, 756-57 (1970). The same

7
It is not clear that the Guidelines amendments would have in fact
affected Dodd’s potential sentence. Dodd pleaded guilty to drug and
racketeering conspiracies. Sent. Tr. at 25. In return, the Government
agreed to dismiss all non-conspiracy charges, including nine cocaine
base counts. Dodd Plea Agr.; Indict. 36-47. But the Guidelines
amendments did not lower the sentencing range for the conspiracy
counts to which Dodd pleaded guilty, Order, United States v. Dodd,
Cr. No. 04-128-06 (D.D.C. Mar. 19, 2009), because the conspiracies
entailed distributing and possessing with intent to distribute thirty
kilograms or more of phencyclidine (PCP) separate from cocaine base.
Id.; Dodd Plea Agr. at 3. According to Dodd’s calculation, if he had
gone to trial and been acquitted on the conspiracy charges, the
Guidelines range he would have faced on the remaining
charges—including the nine non-conspiracy cocaine base
counts—would have been lower than the twenty-five-year sentence to
which he agreed. Appellants’ Br. 25.
 11

principle applies here. A guilty plea does not automatically
become tainted if a change in the law alters a variable that the
defendant considered when he decided to plead guilty. See id.;
see also United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005)
(“[T]he possibility of a favorable change in the law occurring
after a plea is one of the normal risks that accompany a guilty
plea.”) (citing Brady, 397 U.S. at 757).
Dodd cites United States v. Dews, 551 F.3d 204 (4th Cir.
2008), vacated and reh’g en banc granted, No. 08-6458 (4th
Cir. Feb. 20, 2009), appeal dismissed as moot, No. 08-6458 (4th
Cir. May 4, 2009), and Melendez-Perez v. United States, 467 F.
Supp. 2d 169 (D.P.R. 2006), for support. As indicated, the
Fourth Circuit vacated Dews, granted rehearing en banc and
ultimately dismissed the appeal as moot. 551 F.3d 204.8 In
Melendez-Perez, the district court reduced the defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2) because the parties
and the court had been unaware at sentencing of an extant
Guidelines amendment that put the agreed-upon sentence
outside the recommended range. 467 F. Supp. 2d at 175-76. The

8
In Dews, the Fourth Circuit held that 18 U.S.C. § 3582(c)(2)
(“[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the court may reduce the
term of imprisonment . . . .”) authorized the district court to account
for Guidelines amendments by reducing a sentence to which the
defendant agreed pursuant to Rule 11(c)(1)(C). 551 F.3d at 209.
Other circuits have reached the opposite result, concluding that
a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is
not “based on” the Guidelines and thus does not come within the
scope of 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Main, 579
F.3d 200, 203 (2d Cir. 2009); United States v. Sanchez, 562 F.3d 275,
280 (3d Cir. 2009); United States v. Scurlark, 560 F.3d 839, 841 (8th
Cir. 2009). But see United States v. Cobb, No. 08-1213, 2009 WL
3418214, at *5 (10th Cir. Oct. 26, 2009) (following Dews).
 12

district court sought to remedy “an unjust situation essentially
provoked by its lack of relevant and essential information prior
to sentencing.” Id. at 175. It stated that “it would have assuredly
rejected the plea agreement at sentencing if it had been aware of
the effectiveness” of the Guidelines amendment. Id. at 176. In
this case, Dodd moved to withdraw his guilty plea, not reduce
his sentence.9 Further, the district court here lacked no “relevant
and essential information” when it sentenced Dodd; it was aware
of the Guidelines amendments when it imposed the sentence to
which Dodd and the Government had agreed. See, e.g., Sent. Tr.
at 10 (“[S]ubsequent to his plea the guidelines have been
changed for crack . . . .”). In sum, contrary to Dodd’s assertions,
the fact that his sentencing occurred after the Guidelines
amendments does not mean that he was entitled to withdraw his
plea. See Brady, 397 U.S. at 757. Likewise, the fact that the
district court could have rejected the plea agreement and vacated
his guilty plea in light of the Guidelines amendments does not
mean that Dodd was similarly empowered. See Fed. R. Crim. P.
11(c)(5) (enabling district court to reject plea agreement and
thereafter permit defendant to withdraw guilty plea).
Finally, Dodd asserts that his argument is “based on the
well-established principle that courts are to use the Sentencing
Guidelines in effect on the date of sentencing.” Reply Br. 13
(citing USSG § 1B1.11(a)). This gains him no ground. To the
extent the district court “used” the Guidelines at all in
sentencing Dodd, there is no reason to believe it used any but
those “in effect at the date of sentencing.” See, e.g., Sent. Tr. at

9
Dodd also moved for a sentencing reduction pursuant to 18
U.S.C. § 3582(c)(2). Order, United States v. Dodd, Cr. No. 04-128-06
(D.D.C. March 20, 2009). The district court denied his motion, id.,
and Dodd does not appeal that denial.
 13

23 (assessing Dodd’s sentencing prospects under the “guidelines
as they now exist”).10
Appellant Dorsey also raises a separate claim, contending
that the district court failed to advise him of certain trial rights
pursuant to Rule 11(b)(1). He makes this objection for the first
time on appeal and therefore we review for plain error only. See
In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002). “To
prevail under the plain error standard, an appellant bears the
burden of demonstrating that (1) the court clearly erred, (2) the
error implicated the appellant’s substantial rights, and (3) the
error has ‘seriously affected the fairness, integrity or public
reputation of the judicial proceedings.’” Baker, 489 F.3d at 371
(quoting In re Sealed Case, 283 F.3d at 352).
Dorsey was the last of the appellants to plead guilty on
January 17, 2007. Plea Tr. By failing to separately advise
Dorsey of several trial rights, including the right to plead not
guilty, be tried by a jury, confront and cross-examine witnesses,
be protected from self-incrimination, testify and present
evidence and compel the attendance of witnesses, the district
court clearly erred. See Fed. R. Crim. P. 11(b)(1)(B), (C), (E);
Plea Tr. at 38. Dorsey has thus satisfied the first requirement for
plain error. See Baker, 489 F.3d at 371. In order to establish that
the court’s error affected his substantial rights, however, he
“must show a reasonable probability that, but for the error, he

10
It is also worth noting that the transcript of Dodd’s plea
colloquy is at odds with his argument regarding the Guidelines
amendments’ effect. During the colloquy, the district court stated,
“The guideline analysis does not impact the real sentence because the
real sentence to which you’ve agreed is 25 years. . . . Do you
understand that?” Plea Tr. at 19. Dodd replied, “Yes, ma’am.” Id.
When the court repeated that the Guidelines calculation “doesn’t make
a difference because your agreement is for 25 years,” Dodd replied,
“Right.” Id.
 14

would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Although Dorsey makes the
argument that, had the district court informed him of the rights
it omitted, he would not have pleaded guilty, Appellants’ Br. 24,
we are not persuaded. The court’s omissions caused him to
plead guilty, he asserts, because in their absence he “believed he
had no choice but to” enter a guilty plea. Id. For several reasons,
this assertion defies belief. First, Dorsey read and signed a plea
agreement informing him of his trial rights. Dorsey Plea Agr. at
5; see Dominguez Benitez, 542 U.S. at 85 (defendant’s
familiarity with plea agreement “tends to show that the Rule 11
error made no difference to the outcome”); cf. In re Sealed Case,
283 F.3d at 355 (Rule 11 omission not plain error in part
because of defendant’s familiarity with factual proffer covering
omitted content). Indeed, during the plea colloquy, the court
asked Dorsey if he had been “able to understand and read the
plea agreement,” to which he responded, “Yes, ma’am.” Plea Tr.
at 39. Second, Dorsey acknowledged during his plea hearing that
his lawyer had advised him as to his “choices” and his
“options.” Plea Tr. at 39-40; see In re Sealed Case, 283 F.3d at
355 (Rule 11 omission not plain error in part because defendant
“was represented and advised by counsel throughout”). Third,
Dorsey had just sat through complete Rule 11 plea colloquies
with Dodd and with Robinson. Plea Tr. at 1-38. While Dorsey
may not have been paying strict attention (an assertion he does
not directly make), his presence throughout two complete plea
colloquies makes it less likely that the judge’s omissions in his
case caused him to plead guilty. In short, Dorsey has not shown
“a reasonable probability” that the district court’s error affected
his substantial rights. Dominguez Benitez, 542 U.S. at 83. We
need not address, therefore, whether the error “‘seriously
affected the fairness, integrity or public reputation of the judicial
proceedings.’” Baker, 489 F.3d at 371 (quoting In re Sealed
Case, 283 F.3d at 352). The district court’s omissions during
 15

Dorsey’s Rule 11 colloquy do not constitute plain error
requiring withdrawal of his guilty plea.
In sum, the district court did not abuse its discretion in
rejecting the appellants’ arguments that their guilty pleas were
tainted. The most important factor in our inquiry therefore
weighs in the Government’s favor. See Ford, 993 F.2d at 251.
If this factor favors the Government, “we will be extremely
reluctant to reverse the district court” and an appellant will have
to “shoulder an extremely heavy burden if he is ultimately to
prevail.” Cray, 47 F.3d at 1208. We conclude that the appellants
have not met that burden.
2. Viable Defense
We next consider whether the appellants have asserted
“viable claims of innocence,” which we dub “legally cognizable
defenses.” Curry, 494 F.3d at 1129. To satisfy this standard, an
appellant “‘must do more than make a general denial in order to
put the Government to its proof; he must affirmatively advance
an objectively reasonable argument that he is innocent, for he
has waived his right simply to try his luck before a jury.’” Id.
(quoting Cray, 47 F.3d at 1209).
All three appellants make broad denials in connection with
their motions to withdraw their guilty pleas. Robinson “insists
he is innocent of all . . . charges. He maintains that despite any
statements to the contrary made at the plea proceeding, he
neither participated in [homicides to further the racketeering
conspiracy nor] had any intent to join with any group or other
individuals in an organized or coordinated sale of drugs.”
Supplemental Submission in Support of Motion to Withdraw
Guilty Plea at 2, United States v. Robinson, Cr. No. 04-128-13
(D.D.C. July 12, 2007). For his part, Dodd
maintains he is innocent of the charges to which
he pled guilty . . . . [He] avers he was never a
member of the so-called John Franklin
 16

conspiracy and only knew Franklin from around
the neighbor hood [sic]. [He] further states that
he never sold PCP, pills, or crack for John
Franklin; he never bought PCP, pills, or crack
from John Franklin; he never worked for John
Franklin; and he never took orders from John
Franklin. Mr. Dodd says John Franklin never
supplied him with any drugs.
Supplemental Submission in Support of Defendant’s Motion to
Withdraw His Guilty Plea at 13, United States v. Dodd, Cr. No.
04-128-6 (D.D.C. July 18, 2007) (internal citation and
quotations omitted). Dorsey adopts Robinson’s and Dodd’s
denials. Motion to Adopt and Conform the Motion to Withdraw
Guilty Plea Filed by Jonte Robinson, United States v. Dorsey,
04-128-21 (D.D.C. July 18, 2007); Motion to Adopt and
Conform the Motion to Withdraw Guilty Plea Filed by Kenneth
Dodd, United States v. Dorsey, 04-128-21 (D.D.C. July 19,
2007). The district court rejected these claims, concluding that
the appellants “do not offer anything that would support their
bald statements of innocence.” Robinson, 498 F. Supp. 2d at
336-37.
The appellants liken their case to McCoy, in which we held
that the defendant had “adequately presented cognizable
defenses to the charges against him.” 215 F.3d at 106-07. But
McCoy in fact illustrates the inadequacy of their innocence
claims. There, the charges involved two discrete drug deals and
McCoy specifically challenged the Government’s proof as to
each incident. Id. at 107. Here, the Government charged the
appellants with two vast conspiracies and numerous overt acts.
As noted, the appellants responded with summary assertions of
innocence only. Their attempted defense therefore has none of
the force of that mounted in McCoy. This factor, too, then, cuts
against the appellants.
 17

3. Delay
The final factor we consider is “whether the delay between
the guilty plea and the motion to withdraw has substantially
prejudiced the Government’s ability to prosecute the case.”
Ford, 993 F.2d at 251 (internal quotation omitted). In Brady, we
explained that “[t]he most common form of prejudice is the
difficulty the Government would encounter in reassembling far-
flung witnesses in a complex case, but prejudice also occurs
where a defendant’s guilty plea removed him from an ongoing
trial of co-defendants, who were then found guilty.” 514 F.2d at
222. Both types of prejudice apply here. Before the appellants’
attempts to withdraw their pleas, the Government had conducted
two complex trials of their co-defendants. Robinson, 498 F.
Supp. 2d at 337 n.7. The trials involved approximately one
hundred witnesses and lasted about five months each. Id.
Moreover, as the district court noted,
The United States was ready, willing, and able to
begin trial for these Defendants when they
decided to plead guilty. That trial proceeded
against Mr. Gooch alone . . . . To now allow
these Defendants to withdraw their pleas and
require the prosecutors to try the same case a
third time . . . would be extremely prejudicial to
the interests of the United States and the people
of Washington, D.C.
Id. at 337. While the appellants correctly note that the delay
factor is not dispositive, Cray, 47 F.3d at 1208, it nevertheless
favors the Government here. Given that the other two factors
also favor the Government, we conclude that the district court
did not abuse its discretion in denying the appellants’ motions
to withdraw their guilty pleas.
 18

C. No Evidentiary Hearing
The appellants also contend that the district court abused its
discretion in denying their request for an evidentiary hearing.
This argument has no merit. “A district court need hold an
evidentiary hearing on a plea withdrawal only where the
defendant offers ‘substantial evidence that impugns the validity
of the plea.’” West, 392 F.3d at 457 n.4 (quoting United States
v. Redig, 27 F.3d 277, 280 (7th Cir. 1994)). Our analysis above
amply illustrates that none of the appellants has met this burden.
Therefore, the district court did not abuse its discretion in
denying them an evidentiary hearing.
As the Supreme Court noted in Hyde, it is no trifling matter
to allow a defendant to withdraw a guilty plea “[a]fter [he] has
sworn in open court that he actually committed the crimes, after
he has stated that he is pleading guilty because he is guilty, after
the court has found a factual basis for the plea, and after the
court has explicitly announced that it accepts the plea.” 520 U.S.
at 676. All of this occurred at the appellants’ plea hearings and
the district court correctly denied their attempts to undo the
same.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.