The opinion
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-25-2006
USA v. Wilder
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4736
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-4736
UNITED STATES OF AMERICA
v.
GARY KENNETH WILDER, JR.,
Appellant
____________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 03-CR-72-13
District Judge: The Honorable Joy Flowers Conti
____________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 24, 2006
Before: SMITH, FISHER, and COWEN, Circuit Judges
(Filed: October 25, 2006)
____________________
OPINION
____________________
SMITH, Circuit Judge:
On November 4, 2003, Gary Wilder pled guilty to two counts of a multi-count
indictment charging him with possession with intent to distribute 100 grams or more of
heroin and carrying a firearm in connection with a drug trafficking offense, pursuant to 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), and 846. On January 23, 2004, Wilder filed a
motion to withdraw his guilty pleas on the grounds that they were not knowingly and
intelligently made because his counsel had incorrectly advised him that he would not be
designated as a career offender. He claimed that he would not have entered the pleas had
he known that he would so qualify.
After conducting a hearing on the defendant’s motion, United States District Judge
Joy Conti denied Wilder’s motion to withdraw his guilty plea. Judge Conti applied the
three factor test laid out by this court in United States v. Jones, 336 F.3d 245 (3d Cir.
2003), and determined that Wilder’s claim failed as to the first prong because he did not
meaningfully assert his innocence. See id. at 252. On the basis of this failure, the District
Court ruled that Wilder was precluded from withdrawing his pleas. The District Court
reached this decision on the basis of its mistaken understanding that the three factors were
mandatory. Wilder filed a timely appeal to this court. We explained that the three factors
were not mandatory, and remanded the case for further consideration of the motion to
withdraw.
Upon remand, the District Court considered each of the three Jones factors, and
concluded that, on balance, Wilder had not demonstrated a fair and just reason for
withdrawing his pleas. In particular, the Court concluded that the assertion of innocence
factor was “compelling and weigh[ed] heavily in the balancing of the factors with respect
to withdrawal of defendant’s guilty plea because the strength of the evidence concerning
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defendant’s guilt was strong ... and defendant failed to make any meaningful showing that
he was innocent.” The District Court sentenced Wilder to a term of 236 months. Wilder
timely filed this appeal.1
Our review of the District Court’s denial of the defendant’s motion to withdraw his
guilty plea is for an abuse of discretion. See Jones, 336 F.3d at 252; United States v.
Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). As explained in both Federal Rule of Criminal
Procedure 11(d) and United States v. Jones, a defendant must have a “fair and just reason
for requesting the withdrawal.” F ED. R. C RIM. P. 11(d); Jones, 336 F.3d at 252. The three
factors that must be considered in evaluating a motion to withdraw the guilty plea are:
“(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.” Jones, 336 F.3d at 252; United States v. Jones, 979 F.2d 317, 318 (3d
Cir. 1992); United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989).
As to the first factor, the defendant’s assertion of innocence must be accompanied
by some facts to support the claimed defense, and the defendant must supply sufficient
reasons to explain the contradictory positions taken before the District Court. United
States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). A bald assertion of innocence is
patently insufficient to meet this requirement. Jones, 336 F.3d at 252. Although Wilder
did present evidence from his prior attorney to the effect that “[h]is case really wasn’t that
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291.
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bad,” and that the attorney would not have advised him to plead if he had known that
Wilder would be classified as a career offender, Wilder did not offer any evidence beyond
his own statements to show that he was innocent of the charges. The mere allegation that
he waived his constitutional rights based entirely on his prior counsel’s advice is not
enough to explain why his position changed so drastically. Jones, 336 F.3d at 253.
With respect to the second factor, Wilder asserts that a compelling reason for
withdrawal of his guilty plea is that his Sixth Amendment right to effective counsel was
violated. The two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984),
applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v.
Lockhart, 474 U.S. 52, 58 (1985); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).
Thus, in order to prevail, Wilder must show that his attorney’s conduct fell below an
objective standard of reasonable competence under prevailing norms, and that there is a
reasonable probability that, but for the error, the outcome in his case would have been
different. Strickland, 466 U.S. at 687-88, 694. Wilder has not met this standard. As
explained in Hill v. Lockhart, “in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59.
Wilder presented no evidence apart from his attorney’s assertion that his case was
not “that bad” to demonstrate a reasonable probability that he would have gone to trial
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had he been provided with accurate information regarding his career offender status. This
lone assertion is insufficient to establish prejudice. See Parry v. Rosemeyer, 64 F.3d 110,
118 (3d Cir. 1995) (“A defendant alleging ineffective assistance of counsel in the guilty
plea context must make more than a bare allegation that but for counsel's error he would
have pleaded not guilty and gone to trial.”); see also United States v. Kauffman, 109 F.3d
186, 191 (3d Cir. 1997) (defendant needs to present evidence “sufficient to undermine our
confidence that [the attorney] would have advised his client to plead guilty rather than
proceed to trial and that [the defendant] would have accepted that advice”).
Moreover, this court has held that where the record is “replete with evidence of
petitioner’s guilt,” he is unable to show that there is a reasonable probability that but for
his counsel’s errors the result of the proceeding would have been different. United States
v. Nino, 878 F.2d 101, 105 (3d Cir. 1989). The evidence proffered by the government at
Wilder’s guilty plea was that during a drug conspiracy investigation, agents intercepted
numerous calls between Wilder and his coconspirator regarding heroin transactions,
confirmed the completion of a deal between the two, and conducted a stop of Wilder’s
vehicle shortly thereafter. The vehicle stop uncovered 125 bricks of heroin and a 9mm
semi-automatic handgun. Wilder later admitted to police that his coconspirator had given
him both the drugs and the gun, for which he was indebted to his coconspirator for
$4,500. He also stated that he had previously obtained additional bricks of heroin from
the same coconspirator. Wilder clearly exercised control over both the heroin and the
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firearm, and he has not articulated a defense beyond his own assertions of innocence.
Thus, we conclude that Wilder has failed to show a reasonable probability that but for his
counsel’s errors, the outcome of the proceeding would have been different. Id.
The third factor is not contested in this case. The government conceded at oral
argument before the District Court that it was not asserting prejudice.
The District Court carefully considered and balanced each of the three Jones
factors for withdrawal of a guilty plea. Based on the evidence presented at the withdrawal
motion hearing and the relevant case law, it is clear that Wilder failed to present a fair and
just reason to withdraw his pleas, and the District Court did not abuse its discretion in
denying the motion. For the foregoing reasons, we will affirm the judgment of the District
Court.
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