Petition for Writ of Certiorari — Frank v. United States

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IN THE we

SUPREME COURT OF THE UNITED STA Oo LADA

OCTOBER TERM 1991 Fv Www

FESTUS SYDER, Petitioner

Vv.

THE UNITED STATE OF AMERICA, Respondent

APPLICATION FOR LEAVE TO PROCEED

ON PETITION FOR WRIT OF CERTIORARI

IN FORMA PAUPERIS

TO THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE SUPREME

COURT AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT:

The Petitioner, FESTUS SYDER, asks leave to file the

attached Petition for Writ of Certiorari, without prepayment of

costs and to proceed in forma pauperis. Petitioner has been

granted leave to so proceed in the United States Court of Appeals

for the Fifth Circuit. No affidavit is attached in as much as the

United States District Court appointed counsel for Petitioner under

the Criminal Justice Act of 1964 to represent the Petitioner on

appeal to the United States Court of App@als for the Fifth Circuit

due to his indigency.

fully submitted,

CE McCALL SECREST, JR.

StAéte Bar No. 17973900

3 Clay Street, Suite 4130

Houston, Texas 77002

713) 757-0679

Counsel for Petitioner,

FESTUS SYDER

RECEIVED

JUN 4 1991

OFFICE OF THE CLENKA

SUPREME COURT, US

~—. 90 - E20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

FESTUS SYDER

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEORGE McCALL SECREST, JR.

State Bar No. 17973900

333 Clay Street, Suite 4130

Houston, Texas 77002

(713) 757-06798

Attorney for Petitioner,

FESTUS SYDER

Whether the district court clearly abused its discretion in

increasing the offense level by two (2) levels ostensibly for

“Willfully, Obstructing or Impeding Proceedings” in that the

alleged conduct in question, even if true, as a matter of law,

falls outside the reach of § 3Cl.1 of the Sentencing Guidelines.

Whether the district court clearly abused its discretion in

increasing the offense level by two (2) levels pursuant to §

3C1.1. of the Sentencing Guidelines in that there was no evidence

that the defendant had any complicity in the conduct allegedly

constituting an obstruction of the administration of justice.

Whether the district court clearly abused its discretion in not

awarding the defendant a two (2) level decrease for Acceptance of

Responsibility in the present case.

Whether the district court erred in failing to comply with Rule

ll(c)(1), Fed. R. Crim. Pro., in that the defendant was not

admonished as to "the effect of any ... supervised release term.”

Whether the trial court abused its discretion in denying tne

Defendant's Motion to Allow Withdrawal of Plea of Guilty.

LIST OF PARTIES TABLE OF CONTENTS

The United States of America

Festus Syder QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES .

TABLE OF CONTENTS .

INDEX OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE .

BASIS OF FEDERAL JURISDICTION

IN THE UNITED STATES DISTRICT COURT .

QUESTIONS ONE, TWO, AND THREE RESTATED

STATEMENT OF PACTS .....+26-s

REASONS FOR GRANTING THE WRIT

QUESTION FOUR RESTATED .

STATEMENT OF FACTS eses

REASONS FOR GRANTING THE WRIT

QUESTION FIVE RESTATED

STATEMENT OF FACTS eee.

REASONS FOR GRANTING THE WRIT

CONCLUSION ...

CERTIFICATE OF SERVICE

APPENDIX A, Upinion of the United States Court

Appeals for the Fifth Circuit ° «

ii

CASES

Brennan v. United States, 97 s.ct. 1682 (1977) TUT TITTTILTILTITTITTittt

McChristion v. United States, 108 8.ct. \, >} Prrrrrrrrrrererrrrrrrrrere | |

Morgan v. United States, 380 F.24 915 (Sth Cir. 1967). -ceceeneeeeesdf

,» 793 F.24 612 (Sth Cir. 1636),

cert. den. 107 6.ct. BBB ccccccccsccceceeeceseeesessesesesesese kd}

United States v. Blair, 902 F.24 323, 324 (Sth Cir. 1990).....+665+12

v , 740 F.24 339,343 (Sth Cir. 1984),

cert. den. 107 6.ct. rh) PPPrrrrrrreererreeEEEEELELELELELet st ltt.

United States v. Daniel, 866 F.24 749, 741 (Sth Cir. 1989).........16

, 604 F.24 931 (Sth Cir. 1979)

(en banc), cert. den., 100 6.Cct. BOGS cccccccosecessoescoseoooehds

United States v. Ebertowski, 896 F.24 906 (Sth Cir. 1990)......566657

, 869 F.24 797, 800

(Sth cir. | PPPPTTTITITITITIITI TTT ITITIrireirirrririrrriririe |

, 777 F.24 351, 358, n. 3

(7th cir. 1985), cert. den., 106 6.ct. > rrTrTrrrrrreireest:

, $50 F.26 8618 (24 Cir. 1977),

cert. den., 431 U.8. 970 COSC OCCESOESSESEESESEESESESEESeeesseene

United States v. Klein, 560 F.24 1236 (Sth Cir. 1977),

cert. den., 96 6.ct. DS OOO SSSOSEHOESOOESSOSSSSOESEOCESSCOESCOONN

~ , 653 F.24 1193, 1200

(Sth Cir. PPPPTTITITITITITIIIIIriirieririirririrrrirrrireieree

United States v. Morrow, 537 F.24 120, 146 (Sth Cir. 1976),

ey eres 628 F.24 399, 422 (7th Cir. 1987),

CEOSSHHSESESHESEHSESESEEEHESEESESEEESESESESESESESeseesn®e

United States v. Reyes-Ruiz, 866 F.24 698 (Sth Cir. 1989)..........12

United States v. Tuangmaneeratmun, 925 F.24 797 (Sth Cir. 1991)....12

United States v. Wilson, 904 F.24 234,235 (Sth Cir. 1990).......10,11

Title is, U.8.C., & 4205 (c) SOHOHSSHESSHESSSSSSSESESESSSE SESS ESSESOESESESOSEOERED

Title 21, U0.8.C., 6 952 (a) SOSHCSSHSSSSOSESEESESSESEESESEESESSEESESESESSEOON

Title 21, U0.8.C., $$ @41(a) (1) SCOCHSHSSSSSESESSESESEESEEESESESESESESEeed

Title 2i, U.8.C., Rk . | Fewrrrreieereeeefeeieerreseefeefeeeeeeeeeeee

Title 26, 0.8.c., 6 PPP seeeoecesesoeeoeseoeseeeseeeeeeeeeeeeeesseeel

FeGeral Rules of Criminal Procedure, Rule 11... 2.6.66. eeeeueuuesd2,3S

Federal Rules of Criminal Procedure, Rule 11(¢) (1).......6650eee00R,Al

Federal Rules of Criminal Procedure, Rule 32(4)......ccccucccuccceedld

Federal Rules of Appellate Procedure, Rule 4(b) 2... 666s ccc cnncunnceld

FeGeral Gentencing Guidelines, § 2DL.> 2. cece ccc cccccnnccnncunccenesSé

Federal Sentencing Guidelines, § 3CL.1 2... ccc cucccuececdy3,?,10,11

iv

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

FESTUS SYDER,

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit entered in the above entitled proceeding.

OPINION BELOW

A copy of the opinion of the United States Court of Appeals for

the Fifth Circuit in Case No. 90-2299, United States v. Festus Syder

is attached as Appendix A.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit on April

1, 1991, entered its opinion affirming the judgment of the District

Court. Jurisdiction of the Court is invoked under §1254(1), Title 28,

United States Code.

CONSTITUTIONAL PROVISIONS INVOLVED

No person shall ... be deprived of life, liberty or property,

without due process of law

In all criminal prosecutions, the accused shall enjoy the right

to @ speedy and public trial, by an impartial jury of the state and

Gistrict wherein the crime shall have been committed

Course of Proceedings and Disposition in the Court Below:

Festus Syder, the defendant, was charged in a four count indict-

ment with conspiracy to import into the United States in excess of 100

grams of heroin; conspiracy to possess with intent to distribute in

excess of 100 grams of heroin; importation into the United States in

excess of 100 grams of heroin; and with possessing with the intent to

distribute in excess of 100 grams of heroin, proscribed, respectively,

by Title 21, U.6.C., §§ 952(a); 841(a) (1); 952(a) and 841(a)(1) (R.I-

167-168).

Mr. Syder entered a plea of guilty as to each count on September

26, 1989. On February 26, 1989, Syder was sentenced to a period of

incarceration of sixty (60) months and assessed a period of supervised

release of five (5) years (R.I-33).

On March 20, 1990, pursuant to Rule 4(b), Fed. R. App. Pro.,

the undersigned counsel sought leave of court to extend the time for

the filing of the notice of appeal in that previous defense counsel had

not perfected appeal and the ten (10) day period provided by Rule 4 had

lapsed prior to the undersigned counsel's appointment (R.I-25-28). The

motion was granted on the same date it was filed - March 20, 1990 (R.I-

18).

In an opinion dated April 1, 1991, the United States Court of

Appeals for the Fifth Circuit rejected the petitioner's contentions

advanced in his brief on direct appeal and affirmed his conviction.

BASIS OF FEDERAL JURISDICTION

This is @ prosecution brought by the United States government

elleging a violation of United states Code, Title 21, §§952(a);

S4i(a) (1): 952(a) and B41 (a) (1).

QUESTIONS ONE, TWO, AND THREE RESTATED

1. Whether the district court clearly abused its discretion in

increasing the offense level by two (2) levels ostensibly for

“willfully, Obstructing or Impeding Proceedings” in that the

alleged conduct in question, even if true, as a matter of law,

falls outside the reach of § 3C1.1 of the sentencing Guidelines.

2. Whether the district court clearly abused its discretion in

increasing the offense level by two (2) levels pursuant to §

3Cl.1. of the Sentencing Guidelines in that there was no

evidence that the defendant had any complicity in the conduct

allegedly constituting an obstruction of the administration of

justice.

3. Whether the district court clearly abused its discretion in not

awarding the defendant a two (2) level decrease for Acceptance

of Responsibility in the present case.

STATEMENT OF PACTS

As the record reflects, Mr. Syder was originally represented by

Charles Medlin who appeared as counsel of record for the rearraignment

and entry of pleas of guilty on September 26, 1989 (R.II-2). During

the rearraignment proceeding, it was brought to the Court's attention

that Syder took the “position that he did not know that what he was

actually bringing in was heroin" (R.II-6). The Court informed Syder,

apparently, in reliance upon the doctrine of “deliberate ignorance” or

“conscious avoidance" that he would nonetheless be charged with

knowledge of the contraband. As the Court stated,

“You are responsible for knowledge that you could have

had, but don't learn all the facts, like exactly what's

in the balloon, that doesn't -- we assume that you know

everything you could have known and deciding not to find

out what's in the balloon doesn't help you because, we

know you could have known what was in the balloon if you

wanted to” (R.II-6).

Mr. Syder responded, “Well, yes, but I was forced, I didn't know

what it was" (emphasis added). The defense indicated that he had

no further questions except, “Just other than what we have said”

(R.II-6).

Later in the proceeding, Syder stated that his mother lived

in Nigeria and was seriously ill and in an effort to raise money

to purchase a ticket to travel home, he contacted Ken Alipko, a

"friend," who evcenees det the purchase of a ticket in return for

Syder locating some of Alipko's relatives in Nigeria and bringing

a package back for Alipko to the United States (R.II-10). After

visiting his mother in Nigeria, Syder arrived at the airport to

return to the United States and was met at that location by

Alipko's operatives who escorted him from the airport and drove hin

3

“straight to their hcuse” (R.II-12). Over Syder's protest, he was

persuaded to swallow several balloons. Syder told Alipko's cohorts

that “It will kill me. I don't know what this is” (R.II-13).

Nonetheless, all the balloons were swallowed. Syder stated that

he was then escorted back to the airport where he was instructed

“not to say anything to anybody while I was on the plane” (R.II-

14). Syder related that when he arrived in New York, he felt dizzy

and scared and “luckily enough” a customs officer was able to

discern that perhaps Syder had taken something. Syder consented

to the taking of an x-ray and several days laier, after having been

hospitalized, passed the balloons that he had swallowed in Nigeria

(R.II-14-16). A decision was then made to cooperate with the

government and implicate Alipko (R.II-16-19). As will be demon-

strated infra, Syder fulfilled his obligation to the government and

honestly testified against Alipko and otherwise cooperated with the

prosecution and law enforcement officials.

On November 17, 1989, Mr. George 0. Jacobs filed a Motion for

Substitution of Counsel which was approved by Syder and his former

attorney, Charles W. Medlin, and also caused to be filed the Defen-

dant's Motion to Allow Withdrawal of Plea of Guilty. As is stated

in the aforementioned motion and the attached affidavit in support

thereof, after consulting with Mr. Jacobs, Syder and his then new

counsel believed that @ ner torious defense existed as to all

charges lodged agains * + a® is stated in the motion,

“Both the defenda +) «@ newly retained counsel feel

that the defend=" . « «seritorious defense of duress

in that the det. °* w ~ forced to commit the offense

alleged herein bt, “g°e9%s against his life and the iives

of members of his ‘e»* y. The defendant was not able to

make the appointed counsel fully understand this defense

and the surrounding facts which occurred in Nigeria and

for this reason and based upon appointed counsel's recom-

mendation, the defendant entered a plea of guilty.

Defendant now understands that duress by threat of physi-

cal body (sic), injury or death is a defense to the

allegations alleged in the indictment and the defendant

wishes to be allowed to raise this defense before a jury

in order that he may be guaranteed due process under the

Fourteenth Amendrent of the United States Constitution

and that he may have @ jury enter a finding upon his

Gefense of duress. The defendant now realizes that he

should not have entered a plea of ilty to an offense

to which he did not willfully and intentionally commit

of his own volition and free will” (R.1-64-65).

In a tersely worded order signed on December 18, 1989, the District

Court ruled that “Festus Syder's motion to allow .im to withdraw

his plea of guilty is denied” (R.1I-62).

Subsequently, on January 11, 1990, the government caused to

be filed a Motion to Revoke Release requesting that an arrest

warrant issue for Syder's arrest due to the interception by customs

officials of a bogus passport bearing Syder's photograph, but in

the name of a third party (R.I-57-38). On the same date, the

District court issued an order for the arrest of Syder (R.I-56).

On February 20, 1990, the defendant's Motion to Allow With-

drawal of Plea of Guilty was filed. In this second motion Syder

recounted the substance of the first Motion to Allow Withdrawal of

Plea of Guilty filed on November 17, 1989 and further requested

leave of court for the withdrawal of the plea of guilty due to the

false passport revelation previously discussed. Syder was of the

position that he had no knowledge that his sister had caused to be

sent a false passport and that he should not be held accountable

for her unilateral conduct. As was stated in the motion,

“(tjhe defendant, therefore, was placed in the untenable

position of now being sentenced by a Court that will be

in an entirely different frame of mind egarding defen-

dant's sentence had not the sister took it upon herself

to mail the defendant an illegal passport." This is a

fact situation that the defendant did not bargain for and

was not aware of at the time of his plea of guilty on

September 26, 1989. It is the defendant, Festus Syder's

position that the Court cannot fairly and justly enter

@ proper sentence for the defendant, at this time, in

view of the fact that the Court has expressed its belief

in the defendant's complicity in the procuring of the

illegal passport. This was not a condition that the

defendant agreed to when he entered his plea of guilty

in this cause. Because the attempted importation by his

sister of the illegal ssport cannot help but have an

effect upon the mind of the Court in a negative manner,

as far as the sentencing of the defendant is concerned,

the defendant feels that it is unfair and unjust for the

Court with knowl of the new set of facts and cir-

cumstances for whi the Court has ordered the defendant

confined, to assess the punishment at this time” (R.I-

38-48 at 41).°

On February 26, 1990, the Court considered the second Motion

to Allow Withdrawal of Plea of Guilty and denied the same (R.IV-

7). While the focus of the District Court's comments clearly was

on the assertions brought forward in the second motion as it

' It is to be noted that in a hearing conducted en January

17, 1990, the Court remanded the defendant into the custody of the

Attorney Genera) due to the passport incident.

related to the passport incident, the Court did briefly refer to

the duress issue contained in the initial Motion to Allow With-

drawal of Plea of Guilty:

"The offense with which Mr. Syder is charged is serious

enough, I'm not going to worry about his sister and the

passport, that's Nigeria's problem and his problem, but

he's going to be sentenced for what he did and pleaded

guilty to it. And he now desire (sic) to withdraw the

plea is understandable, I guess. But he was under no

pressure at the time, he chose voluntarily to admit his

guilty (sic), he admitted it. He knew at the time that

it wasn't a conditional plea or anything like that, and

we went througn the whole business with him. He went

through the whole thing or something, changed his lawyer

and now wants to undo it. But the circumstance under

which he was obliged to return the heroin, there's a

difference between not knowing he was going to have to

swallow it and risk his life and being - that's where the

duress came fron. The duress was the means, not the

object. The motion to withdraw the plea is denied"

(R.IV-6-7).

Early on in the sentencing hearing, when defense counsel Jacobs

broached the subject of duress and the previously filed and denied

Motion to Allow Withdrawal of Plea of Guilty, the Court stated,

"We've been through that" (R.IV-4). It is to be noted, however,

that at no time did the Court make any findings of fact or con-

clusions of law relative to the same, nor does the record reflect

that the District Court and the parties had in fact “been through

that." |

As was stated above, except for the brief aforementioned

dialogue, the District Court gave very little consideration of or

treatment to Syder's request to withdraw his plea of guilty. No

findings of fact or conclusions of law were entered, nor was any

inguiry made of the government as to whether it would be prejudiced

or inconvenienced by allowing Syder to withdraw his plea of guilty

and proceed to trial.

The total offense level computed by the United States

Probation Department was a level “4. This was arrived at by

Starting with a Base Offense Level of twenty-six (26) (§ 2D1.1 of

the Sentencing Guidelines). A four (4) level decrease was awarded

@s an Adjustment for Role in Offense. The offense level was next

increased by two (2) levels purportedly as an Adjustment for

Obstruction of Justice. As reflected in the Pre-Sentence Inves-

tigation Report,

] , }

"(t)he Government seized a passport with the defendant's

picture and having a false name which was sent to the

defendant by his sister. It is suspected the documents

were to be utilized by the defendant to flee the juris-

diction of the court. The defendant denies requesting

the passport. This action is viewed as an attempt to

impede the administration of justice during the prosecu-

tion of the instant offense. Per Section 3Cl.1, the

offense level is increased by two” (PSI at 6) (emphasis

added).

Finally, a two level decrease for Acceptance of Responsibility

was denied due to the aforementioned allegation of obstruction of

justice. Again, as reflected in the Pre-Sentence Investigation

Report,

"(a]lthough the defendant initially demonstrated a recog-

nition and affirmative acceptance of personal respon-

sibility for the instant offense, his actions in securing

false documentation to flee suggests he has not. Per

application (sic) Note No. 4, page 3.24 of the guide-

lines, ‘Conduct resulting in an enhancement under 3C1.1

(willfully obstructing or impeding proceedings) ordinari-

ly indicates the defendant has not accepted respon-

sibility for his criminal conduct. There may, however,

be extraordinary cases in which adjustments under both

3Cl1.1 and 3E1.1 may apply” (PSI at 6).

It is submitted that the correct Total Offense Level in the

case at bar is a twenty (20). This figure is arrived at by sub-

tractino four (4) levels from the Base Offense Level of twenty-

six (26) for Adjustment for Role in the Offense which brings the

score to twenty-two (22). No increase for an alleged obstruction

of justice is warranted under the facts and the law. Finally,

Syder was clearly entitled to a further decrease by two (2) levels

for his Acceptance of Responsibility.

At the outset it is conceded that, inexplicably, mo objections

were lodged by defense counsel below to the calculus employed Dy

the probation department in paragraphs 23 and 24 of Pre-Sentence

Investigation Report which addressed the Adjustments for Obstruc-

)

tion of Justice and Acceptance of Responsibility, respectively.

In any event, the record clearly establishes error regarding the

same and this is so even if a plain error standard of review is

utilized. See United States v. Bbertowski, 896 F.24 906 (Sth Cir.

1990).

As the record reflects, a hearing was conducted on January 1”,

1990 due to the rearrest of Syder in the interim between his re-

arraignment and sentencing. It 1s irrefutable that Syder cooper-

ated with federal officials upon his arrival in New York from

4

Lagos, Nigeria, assisting in the arrest and later prosecution of

Ken Alipko. Syder testified against Alipko at the latter's trial

and the government openly acknowledged that not only would a

conviction “had been much more difficult if not impossible" had

Syder not testified, but further "stipulated that defendant has

accepted responsibility for his actions" (Government ’s Response to

Pre-Sentence Report of Defendant Syder, (R.1-50-52).

Mr. Syder was released on bond pending sentencing and as

stated above, was rearrested on January 17, 1990. In a document

styled Motion to Revoke Release, the government averred, in

pertinent part that

"([o}n or about December 30, 1989, U.S. Customs agents

came intc possession of a Nigerian passport issued Decem-

ber 13, 1989, bearing Defendant's picture but in the name

of a third party. Also accompanying this passport was

a letter from Defendant's sister to Defendant. The

passport was being sent to him ‘in case of any urgency'"

(R.I-60).

The government sought the arrest of Syder and "that he be brought

before the Court to snow cause why the conditions of release should

not be revoked" (R.I-61). At the January 17, 1990 hearing, the

district court was informed that customs officials in New York City

had intercepted a Nigerian passport that evidently bore Syder's

photograph, but the name of a third person (R.III-2). Defense

counsel asserted that Syder was

“getting blamed for something that is a unilateral act

on the part of the sister. He had no knowledge she was

doing this, your honor. He didn't participate in any way

in requesting this. It came into customs at New York

City and was intercepted there. An agent who had worked

on the previous case recognized picture and then knew it

was a fake passport. But Mr. Syder didn't know that his

sister was doing this. We have a letter from her, your

honor, that Mr. Davidson (prosecutor) has given me that

accompanied the passport. If you will look at the

letter, in the letters it says that she's tried to

contact him and she has not been able to do that" (R.III-

2).

In reply, the prosecutor stated the following:

"Judge, that was one of the things I was going to present

to you as we have a letter from his sister to Festus anc

@ letter from his sister to, apparently, a doctor here

in Houston who's going to act as an intermediary. In

several places it does indicate she has tried to get in

touch with him unsuccessfully. The one thing that makes

me thing (sic) otherwise is on the third page where

there's a specific reference, as I mentioned in my previ-

ous letter, I have done all that is humanly possible.

And that's the only thing the government would be able

to affirmatively present to the court to indicate he had

an awareness of some awareness of what was to take place"

(R.III-2-3).

As the record reflects, defense counse) offered to have Syder

sworn and testify under oath as to the unilateral nature of the

sister's act and his lack of knowledge as to her conduct (R.III-

4). The district court evidently was not interested in hearing

from Mr. Syder. Defense counsel also pointed out that the Motion

to Revoke Release filed by the government did not allege any viola-

tion of the terms and conditions of release. The Court stated,

"Tyjou know, he doesn't have to commit a crime, all he has to do

is make me nervous" (R.III-5) (emphasis added).

Relative to the letters shown the district court which, inex-

plicably, were not included in the present record on appeal, the

district court evidently paid little attention to their contents.

As the Court stated, "... the letters I don't think add or subtract

either way, certainly not definitely exculpatory. And a lady who

will obtain a fake passport will fake a letter to her brother”

(R.III-6). It appears that the Court's decision ultimately to

revoke bond was based on nothing more than conjecture and specula-

tion:

"I have a very difficult time, not with the letters, but

believing that his sister decided all on her own without

consulting directly or indirectly with Mr. Syder that an

alternative passport should be obtained. Concerned

relatives send money, they talk to lawyers, they call the

court, they write the court. Concerned relatives in my

experience do not spontaneously violate the law of their

own country and gratuitously mail a fake passport to

somebody whom they know is facing serious crimiral penal-

ties in this country” (R.III-5-6).

In any event, the government offered no testimony or witnesses in

support of its motion at the January 17, 1990 hearing, and for that

matter, at sentencing.

Whatever the district ccurt's experience with “concerned

relatives” has been, there is «imply no evidence to demonstrate and

prove any complicity on the part of the defendant. Contrary to the

statement in the Pre-Sentence Investigation Report, as previously

quoted herein, the fake passport was not “sent to the defendant by

his sister," but, was rather, in the process of being forwarded to

Syder at the time of its interception. It obviously was not found

in his possession, nor did the government offer any proof to estab-

lish that Mr. Syder had any knowledge regarding the existence of

the same. Moreover, the conclusion of the Pre-Sentence Inves-

tigation officer that “his (Syder) actions in securing false docu-

mentation to flee suggests he has not (accepted responsibility) ,"

is belied by the record. There is simply no indication nor proof

that Mr. Syder secured or attempted to secure false documentation

to flee. It is submitted that the fake passport's revelation,

based upon the "facts" adduced by the government, did not warrant

revocation of bond, much less an increase in the Total Offense

Level.

Furthermore, it is beyond dispute that the attendant denial

of a two (2) point decrease for Acceptance of Responsibility was

based wholly on the obstruction of justice fiasco. The govern-

ment, the defense and even the Pre-Sentence Investigation Report,

early on, acknowledged that

"the defendant offered voluntary assistance to authoriti-

es in the recovery of the fruits and instrumentalities

of the offense. He provided truthful admission to

authorities of his involvement in the offense and related

conduct. His testimony during the trial of his co-

defendant (Ken Alipko) assisted the government in obtain-

ing a guilty verdict by the jury. The defendant clearly

demonstrates a recognition and affirmative acceptance of

personal responsibility for his criminal conduct" (PSI,

paragraph 18 at 5) (emphasis added).

The district court never stated, nor made a finding, that Mr. Syder

had not accepted full responsibility for his conduct.

REASONS FOR GRANTING THE WRIT

Sentencing Guideline § 3C1.1, entitled, Willfully Obstructing

or Impeding Proceedings, provides that

"([ijf the defendant willfully impeded or obstructed, or

attempted to impede or obstruct the administration of

justice during the investigation or prosecution of the

instant offense, increase the offense level by two (2)

levels."

It has been held that "Section 3Cl.1 is meant to cover cases of

destroying or concealing evidence, testifying untruthfully or

suborning perjury, threatening witnesses or lying to an officer

during the course of an investigation." United States v. Wilson,

904 F.24 234, 235 (Sth Cir. 1990).

Whether “a defendant has obstructed the administration of

justice is a factual question, and the district court's resolution

of the question enjoys the protection of the clearly erroneous

10

standard." United States v. Wilson, supra, at 236, quoting United

States v. Franco-Torres, 869 F.24 797, 800 (Sth Cir. 1989). In

Franco-Torres, the Court paused to address Application Note 2 to

§ 3C1.1 which provides that "[i]n applying this provision, suspect

testimony and statements should be evaluated in a light most favor-

able to the defendant" (emphasis added). The Court held that

"the note simply instructs the sentencing judge to

resolve in favor of the defendant those conflicts about

which the judge, after weighing the evidence, has no firm

conviction. Such uncertainties may arise when the judge

is unsure about which witness to believe, or when the

prosecution has failed to procure available evidence

crucial to the resolution of a controversy" at 801.

In the present case, a clear abuse of discretion has been

shown. The government has not demonstrated any knowledge or com-

plicity on Syder's part relative to the fake passport seized in

New York City; moreover, the obtaining of a fake passport, even if

proved, would not constitute an obstruction of the administration

of justice, pursuant to § 3C1.1. As the Court held in United

States v. Franco-Torres, supra, a finding by a district court that

a defendant has not accepted responsibility for his crimes will be

affirmed “unless they are ‘without foundation'" at 799. In that

the denial of the two (2) point reduction was predicated solely on

the aforementioned alleged obstruction of justice and in that the

obstruction of justice contention has no basis in fact nor law in

the present case, a clear abuse of discretion has been demon-

strated, as well as a deprivation of Due Process of Law.

QUESTION FOUR RESTATED: The district court erred in failing to

comply with Rule ii(c)(1), Fed. R. Crim. Pro., in that the

defendant was not admonished as to “the effect of any ... super-

vised release term." =

STATEMENT OF PACTS

During the rearraignment on counts one (1) through four (4),

no mention of supervised release was made by the district court as

to counts two (2) through four (4). Relative to count one (1), the

only statement on the subject was the following: “(t)he penalty is

from five to 40 years in prison and up to a $2,000,000 fine plus

some supervised release" (R.II-5) (emphasis added).

11

REASONS POR GRANTING THE WRIT

It is axiomatic that.it is incumbent upon the district court

before accepting a plea of guilty or nolo contendere to inform the

accused “of and determine that he understands inter alia, the

‘maximum possible penalty provided by law, including the effect of

any special parole term or term of supervised release.'" United

States v. Blair, 902 F.24 323, 324 (Sth Cir. 1990). Moreover, even

if the term of incarceration actually imposed, including the period

of supervised release assessed, does not exceed the maximum

sentence applicable to the offense or offenses in question,

application of the harmless error rule is inappropriate.

In United States v. Molina-Uribe, 853 F.2d 1193, 1200 (Sth

Cir. 1988), the Court held that

"(rjule 11(c)(1) compels the court to inform the defen-

dant not only of the mandatory minimum, but of the pos-

sible maximum post-incarceration period during which the

special parole will be effective along with an explana-

tion of how it will operate ..."

In the case at bar, while the existence of supervised release was

mentioned by the district court during the Rule 11 colloquy, its

effect and its possible length was not. The dynamics of how super-

vised release would impact or how it would operate upon the defen-

dant's sentence was not broached at all by the district court. See

United States v. Tuangmaneeratmun, 925 F.24 797 (Sth Cir. 1991)

Moreover, the harmlessness found in United States v. Reyes-Ruiz,

666 F.24 698 (Sth Cir. 19869) is not applicable to the case sub

judice. In Reyes-Ruiz, the district court therein provided the

defendant with a range of supervised release but erred as to its

length. Reyes-Ruiz was informed that the period of supervised

release he was looking at was two (2) years, where in fact the

correct amount was three (3). In the case at bar, no range was

mentioned by the district court; furthermore, for a violation of

Title 21, United states Code, § 960(b)(2), the offense alleged in

count one, and the only count that supervised release was nen-

tioned by the district court, carries a period of supervised

release of at least four (4) years with no statutory maximum. The

failure of the district court to inform Mr. Syder of any period of

supervised release and how it would operate vitiated his guilty

12

plea. See also United States v. Dayton, 604 F.¥@ 931 (Sth Cir.

1979) (en benc), cert. Gen., 100 &.Ct. 1080.

QUESTION FIVE RESTATED: The trial court abused its discretion in

Genying the Defendant's Motion to Allow Withdrawal of Plea of

Guilty.

STATEMENT OF PACTS

As previously stated, on the same date the Defendant's Motion

for Substitution of Counsel was filed - November 17, 1898 - a

motion to withdraw the previously entered plea of guilty was also

urged. The Motion to Allow Withdrawal of Plea of Guilty was

summarily denied by the district court on December 28, 1989.

REASONS FOR GRANTING THE WRIT

Rule 32(4), Fed. R. Crim. Pro., governs the withdrawal of a

plea of guilty or nolo contendere when “made before sentence is

imposed, imposition of sentence is suspended, or disposition is had

under 18, U.8.C., § 4205(c) ..." As stated in United States v.

Carr, 740 F.24 339, 343 (Sth Cir. 1984), cert. den. 107 &.Ct. 232,

“(t)j)he standard for determining whether or not a defendant may

withdraw his guilty plea prior to sentencing is whether ‘for any

reason the granting of the privilege seems fair and just.'" Before

imposition of sentence, the motions should be construed liberally

in favor of the accused. United States v. Klein, 560 F.24 1236

(Sth Cir. 1977), cert. den., 98 &.Ct. 1259.

In United States v. Carr, supra, the Court delineated and

identified factors that enter into the calculus concerning the

propriety of a district court's decision concerning whether or not

a plea of guilty or nolo contendere may be withdrawn:

"(1) Whether or not the defendant has asserted his inno-

cence;

(2) whether or not the government would suffer prejudice

if the withdrawal motion were granted;

(3) whether or not the defendant has delayed in filing

his withdrawal motion;

(4) whether or not the withdrawal would substantially

inconvenience the court;

(5) whether or not close assistance of counsel was

available;

(6) whether or not the original plea was knowing and

voluntary;

13

(7) whether or not the withdrawal would waste judicial

resources; and, as applicable, the reason why defen-

ses advanced later were not proffered at the time

of the original pleading, or the reasons why defen-

dant delayed in making his withdrawal motion,” at

343-344.

When all the dust settles, and in the final analysis, review boils

down in any given case to whether or not the trial court abused its

discretion. Carr at 344, and authorities cited therein.

While the defendant readily concedes, as he must, that the

district court is *ccorded “broad discretion" regarding motions to

withdraw pleas of guilty, United States v. Morrow, 537 F.24 i120,

146 (Sth Cir. 1976), cert. Gen., sub nom., Brennan v. United

States, 97 &.Ct. 1682 (1977), at a minimum, the district court

should be required to weigh and consider the factors referred to

in Carr and the record must reflect that the district court has in

fact undertaken an analysis of the elements essential to the

resolution of whether the “broad discretion" has been exercised

without abuse.

Quite unlike United States v. Carr, supra, where the record

demonstrated that the careful trial judge therein assiduously

considered the aforementioned components in an evidentiary hearing

conducted to resolve the matter, in the case at bar, not only was

no evidentiary hearing held, but moreover, no findings of fact or

conclusions of law were made. It simply cannot be said with any

degree of assurance that Judge Hughes considered and weighed the

factors that bear upon whether his “broad discretion” in denying

the motion was abused.

For instance, in the present case, Syder asserted his

innocence by arguing that the criminal acts were committed under

@uress. It is axiomatic that coercion or duress negates willful

conduct and can constitute a defense to prosecution. United States

¥. Bovsand, 550 F.24 618 (24 Cir. 1977), cert. Gen., 431 0.8. 970.

As to whether or not the government would suffer prejudice by the

granting of the motion to withdraw the plea of guilty, not only is

there no indication that this factor was considered or weighed by

the district court, the government never offered any testimony or

even a statement that prejudice would result. As far as the factor

of “delay” is concerned, while fifty-two (52) days elapsed between

14

the entry of the plea and the filing of the Motion to Allow With-

@rawal of Plea of Guilty, it is noted that the motion was filed on

the very same day as the Motion for Substitution of Counsel; more-

over, unlike the facts in Garr, where the motion therein was filed

only three (3) days before sentencing, in the case at bar, the

motion was filed some seventy (70) days before sentencing.

As to factor number 4, “whether or not the withdrawal would

substantially inconvenience the court,” no such finding was made

by Judge Hughes, unlike the finding expressly made by Judge Mahon

in Carr at 346. Factor 5 - “whether close assistance of counsel

was available,” is unknown in this record, as well. In Carr, Judge

Mahon made a finding that prior counsel were “highly effective;”

moreover, original counsel testified at the evidentiary hearing in

Carr and laid on the appellate record their understanding, observa-

tions, positions, etc. Contrasted to this are the facts at bar.

The ction and sworn affidavit in support thereof addressed

communication problems that existed between Syder, a Nigerian

national, and his previous counsel which prevented fair considera-

tion of a bona fide defensive theory. Moreover, original counsel,

Mr. Charles Medlin, was not required by the Court to testify or

file an affidavit controverting anything alleged by Mr. Syder. For

reasons known only to itself, the government tendered nothing to

the Court in opposition to the motion to withdraw.

“whether or not the original plea was knowing and voluntary” -

the sixth factor - is problematic. While Judge Hughes stated on

the record at sentencing that Syder “chose volunterily to admit his

guilty (sic), he admitted it” (R. VI-6-7), this, it is submitted,

does not constitute a finding that the plea was knowing, voluntary

and intelligent. Again, Judge Mahon, in rich detail, found that

the pleas in Carr were knowing and voluntary, at 345. In any

event, in light of the defensive theory of duress which came to

light only after the Rule 11 proceedings had taken place, a genuine

issue is raised as to whether Syder's pleas of guilty were knowing,

voluntary and intelligent.

Finally, “whether or not the withdrawal would waste judicial

resources," was never addressed by the district court in its order

15

ry ‘ ’ ,

CONCLUSION

For these reasons, the Petitioner respectfully prays that this

denying the Motion to Allow Withdrawal of Plea of Guilty. While

it is conceded, especially within the Southern District of Texas

Court will gfant his Application for Writ of Certiorari.

fully submitted,

that the dockets are burgeoning and all of the judges are over

worked, it is unfathomable that according a defendant his right to 1

trial by jury could be viewed as a “waste of judicial resources." Ye _—

See and compare United States v. Benivedes, 793 F.24 612 (Sth Cir.

1986), cert. Gen. 107 6.Ct. 232, wherein an evidentiary heering was

s

333 cl

, Texas 77002

held on the defendant's motion to withdraw plea of guilty and the (713) 757-0679

record established that the government objected to the motion and Attorney for Defendant,

the subject was broached for the first time during sentencing. As

the Court of Appeals reasoned, “(c)rucially, there is no question

eof Benivedes being innocent or claiming innocence ...; United

States v. Ray, 828 F.24 399, 422 (7th Cir. 1987), cert. Gen.;

MeChristion v. United States, 108 &.Ct. 781, wherein it is stated,

“courts should ‘freely grant evidentiary hearings on such mo-

tions,’'" citing, United States v. Fountain, 777 F.24 351, 358, n.

3 (7th Cir. 1985), cert. Gen., 106 8.Ct. 1232; and United States |

Vv. Daniel, 866 F.24 749, 741 (Sth Cir. 19869), wherein the record

reflected extensive questioning of the defendant by the district

court as to the reasons advanced in support of the motion.

It is submitted that the present record cannot support a

finding that an abuse of discretion ‘as not taken place. At the

very minimum, the cause should oe remanded for an evidentiary

hearing wherein the government and more importantly, the district

court, can explicate on the record the reasons and rationale sup-

porting the denial of the motion. Cf. Morgen v. United States, 380

7.24 915 (Sth Cir. 1967), authorizing a remand to the district

court for the entry of specific findings of fact and conclusions

of law relative to Motions for New Trial.

17

16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

FESTUS SYDER,

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent.

CERTIFICATE OF SERVICE

I, GEORGE McCALL SECREST, JR., am a member of the Bar of this

Court, hereby certify that on this 30th day of May, 1991, a copy

of the Petition for Writ of Certiorari in the above entitled case

was mailed first class postage prepaid, to Paula Offenhauser, Chief

of Appellate Division, United States Attorney's 2ffice, Post Office

Box 61129, Houston, Texas 77208, counsel for the respondent herein

and Mr. Kenneth Starr, Solicitor General of the United States,

Office of the Attorney General, Department of Justice, Tenth Street

and Constitution Avenue, N.W., Washingt D.C. 20530.

,

17973900

, Suite 4130

exas 77002

Bar

333 Clay

Attorney for the Petitioner,

FESTUS BYDER

18

APPENDIX A

Opinion of

the United States District Court

of Appeals for the Fifth Circuit

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 90-2299

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FESTUS SYDER,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District cf Texas

(CR H 89 242 2)

( April l, 199] )

Before KING, GARWOOD, and DUHE, Circuit Judges.

PER CURIAM:1

Appellant Syder challenges his sentence for aiding and

abetting the importation of heroin, conspiracy to possess heroin,

and heroin possession. He argues that the district court

improperly applied the enhancement for obstruction of justice

‘

erred in refusing to afford him a reduction for acceptance of

responsibility, failed to comply with the requirements of Federal

1 Local Rule 47.5

-2 provides: “The publication of opini

a S- by and merely decide particular vr Rg

~settled principles of law impose

expense on the public and burdens on the Seal po nm gg

Pursuant to that Rule, the

shout’ eae ta catia. Court has determined that this opinion

Rule of Criminal Procedure 11l(c), and improperly denied his

motion to withdraw his guilty plea. Finding no error, we affirm.

Facts and District Court Proceedings

When Syder, a Nigerian native, learned that his mother was

seriously ill, he decided to return to Nigeria to attend to her.

Being short of funds, he sought help from Ken Alipko, a Houston

"friend" involved in heroin trafficking. Alipko purchased a

airline ticket for Syder, asking only that Syder deliver a

package to Alipko’s “relatives” in Nigeria, and return with a

package for him that the relatives would give him. Alipko

provided Syder with the names of his contacts, and instructed him

to call them on the scheduled day of his return.

Syder complied with Alipko’s instructions, meeting Alipko’s

"relatives" at the airport. At their instruction, Syder followed

them to a house, where he delivered Alipko’s package containing

$5,000 cash to them. In return, the men presented Syder with

forty-five balloons of heroin, instructing him to swallow then.

Syder initially protested on general principle, as well as on the

ground that he did not know what was in the balloons. The men

allegedly threatened him, withholding his visa and passport.

Syder eventually acquiesced, swallowed the balloons, and returned

home as scheduled.

Not surprisingly, Syder arrived at the New York airport

dizzy and frightened. Noting his behavior, a customs agent asked

Syder if he had taken anything that day. Syder confessed that he

had, and consented to an X-ray examination at the airport. When

the X-ray revealed the balloons in his stomach, Syder was

admitted to a hospital, and administered a laxative. The

contents of the balloons he passed were analyzed and confirmed to

be heroin.

Syder consented to cooperate with the agents in their

efforts to arrest Alipko. Syder contacted Alipko, proffered a

confected alibi for his delayed arrival, and arranged to have

Alipko meet him at the airport. When Alipko and a companion

arrived at the airport, they were arrested by federal agents.

Syder was indicted for one count of conspiracy to aid and

abet the importation of heroin, one count of conspiracy to aid

and abet the possession of heroin with intent to distribute, one

count of aiding and abetting the importation of heroin, and one

count of aiding and abetting the possession of heroin with intent

to distribute, in violation of 21 U.S.C. §§ 952(a), 960(b)(2),

841 (a)(1), 841(b)(1)(B), and 846, and 18 U.S.C. § 2. Pursuant

to a written plea agreement, Syder pleaded guilty to all four

counts. The court sentenced Syder, on each count, to sixty

months’ imprisonment and five years of supervised release, to run

concurrently. Syder filed a timely notice of appeal.

Rule 11

Syder contends 'that "(t)he failure of the district court to

inform [him] of any period of supervised release and how it would

operate vitiated hig guilty plea." At the guilty plea hearing,

the district court stated, reyarding count one, that "the penalty

is from five to forty years in prison and up to a two million

dollar fine plus ine supervised release." The court did not

mention any term of supervies release with regard to counts two,

three, or four.

In pertinent sect, Federal Rule Criminal Procedure 11(c)(1)

|

provides:

Before accepting a plea of guilty .. .,

the court must address the defendant

personally in open court and inform the

defendant of, and determine that the

defendant understands, the following:

|

(2) |the nature of the charge to which

the plea' is offered, the mandatory minimum

penalty provided by law, if any, and the

maximum possible penalty provided by law,

including the effect of any .. . supervised

release term. .. .(emphasis added).

The government persuasively argues that the district judge

properly infoened | Syder in open court that he faced the

possibility of al imposed term of supervised release. The

written plea agreement signed by Syder and his counsel

specifically detailed the applicable punishment range, including

the minimum term of supervised release.2 Thus, the district

2 Tn that regard, we distinguish United States v. Andrews,

918 F.2d 1156 ince Cir. 1990), a recent case vacating a sentence

for non-compliance| with Rule 11. In Andrews, the defendant was

not advised of either the minimum or the maximum term of

Supervised release|that could be imposed. The court rejected the

4

See BEST AVAILABLE COPYS

court’s failure to reiterate the supervised release range on the

record did not negate the fact that Syder was fully advised of

the consequences of his guilty plea.

Even if we were to find that the court failed to adequately

detail the applicable punishment range, that variance alone will

not mandate vacation of Syder’s plea. Subsection (h) of Rule 11

provides that “[{a]ny variance from the procedures required...

that does not affect substantial rights shall be disregarded."

Accordingly, the failure to fully comply with Rule 11 is not

fatal if the variance was not “likely to have been a material

factor affecting the petitioner’s decision to plead guilty."

Coody _v. United States, 588 F.2d 1089, 1090 (Sth Cir.

1979)(internal quotations and citations omitted).

This rule was recently applied by our court in United States

v. Reyes-Ruiz, 868 F.2d 698 (5th Cir. 1989). In that case, the

defendant was erroneously informed that the mandatory period of

supervised release was two years instead of three. The court

rejected Reyes-Ruiz’ argument that the error vitiated his guilty

plea, finding that the misstatement did not affect his decision

to plead guilty. The court specifically distinguished United

government’s argument that the presentence investigation report

(PSR) informed the defendants of the of the terms of supervised

release, noting that the PSR is prepared after the plea is

entered, rather than before it is entered. See Fed. Rule Crim.

Pro. 11(c)(1) (imposing the requirement that all disclosures be

made “before [the court] accept[s] a plea of guilty"). However,

because Syder and his counsel signed the written plea agreement

clearly disclosing the supervised release range before entry of

his plea, the rationale of the Andrews holding is inapplicable.

5

States v. Molina-Uribe, 853 F.2d 1193 (5th Cir. 1988), cert.

denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989), a

case in which a guilty plea was vacated for failure to comply

with Rule 11. However, as the Reyes-Ruiz court noted, in Molina-

Uribe the district judge failed to make any mention of the fact

that the defendant could be sentenced to a term of supervised

release. Thus, the court’s complete failure to address a core

concern of Rule 11 made the harmless error analysis

inappropriate.

We conclude that the district court’s failure to reiterate

the applicable supervised release range could not have had any

significant influence on Syder’s decision to plead guilty. He

was “caught in the act” of trying to smuggle heroin into the

country, and the evidence of his guilt was overwhelming. See

Reyes-Ruiz, 868 F.2d at 703-4. Any variance in the court’s

compliance with Rule 11 constituted harmless error.

Obstruction of Justice

Syder argues that the district court erroneously applied the

two level enhancement for obstruction of justice provided in

U.S.S.G. § 3Cl.1, and erred in refusing to grant the reduction

for acceptance of responsibility provided in U.S.S.G. § 3El.1l.

We find no error.

The standard of review regarding guideline sentencing is

statutorily defined. Syder’s sentence must be upheld unless he

demonstrates that it was imposed in violation of the law, as a

result of an incorrect application of the guidelines, or was

outside the range of the applicable guidelines and was

unreasonable. - 18 U.S.C. § 3742(e); United States v. Ebertowski,

896 F.2d 906 (Sth Cir. 1990). This court must give “due regard

to the opportunity of the district court to judge the credibility

of witnesses" by accepting its findings of fact un)ess they are

clearly erroneous. 18 U.S.C. 3742(e). Beyond even the clearly

erroneous standard, this court must give “due deference to the

district court’s application of the guidelines to the facts."

United States v. Woolford, 896 F.2d 99 (Sth Cir. 1990).

Because the appellant asserts a ground of error not raised below,

the judgment may only be reversed upon a finding of plain error.

Fed. Rule Crim. Pro. 52(b); United States v. Yamin, 868 F.2d 130

(Sth Cir.) cert. den., U.S. , 109 S.Ct. 3258, 106 L.Ed.2d

603 (1989).

The facts relevant to the obstruction and acceptance of

responsibility issues show that while Syder was free on bond,

Customs agents obtained possession of a recently issued Nigerian

passport. Although the passport bore Syder‘’s photograph, it was

issued in the name of a third party. Accompanying the passport

was a letter addressed to Syder from his sister advising him that

she was sending the passport “in case of any urgency." Although

Syder denied having any knowledge of his sister's efforts to

7

secure the false document, the district court concluded that

Syder’s access to friends and relatives wiling and able to help

him elude justice warranted revocation of his relase. In

conjunction with those proceedings, Syder also filed multiple

requests to withdraw his guilty plea, repeatedly maintaining that

he was coerced into participating in the heroin smuggling scheme.

While it is doubtful Syder’s challenges could overcome the

high degree of deference we give the trial judge’s findings of

fact in sentencing matters, further inquiry into his contentions

is unwarranted. Syder was sentenced to sixty months’

imprisonment, the statutory minimum sentence. See 21 U.S.C. §

841 (b)(1)(B). Given the fact that the district court may only

depart below the statutory minimum in extraordinary circumstances

and upon motion of the government, neither of which were present

in this case, we cannot conclude that Syder was prejudiced by the

court’s findings. See 18 U.S.C. § 3553(e).

Withdrawal of the Plea

Federal Rule of Criminal Procedure 32(d) provides that a

court may permit withdrawal of a guilty plea prior to sentencing

for any fair and just reason. MThe district court undertakes a

totality of the circumstances inquiry, and its evaluation will

not be disturbed absent an abuse of discretion. United States v.

Carr, 740 F.2d 339, 344 (Sth Cir. 1984), cert. denied, 471 U.S.

1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). In Carr, the court

enumerated seven factors which should be considered in evaluating

a withdrawal motion. These include whether (1) the defendant has

asserted his innocence, (2) the government would suffer

prejudice, (3) the defendant has delayed his withdrawal motion,

(4) the withdrawal would substantially inconvenience the court,

(5) close assistance of counsel was available, (6) the original

plea was knowing and voluntary, and (7) withdrawal would waste

judicial resources. Id.

Although the district judge did not detail his reasons for

denying the withdrawal motion, support for his decision may be

discerned from the record. Syder coupled his delayed

protestations of innocence with a allegations of duress, a

defense he failed to raise, even with the close assistance of

counsel, at an earlier stage in these proceedings. 3 Syder’s

motion to withdraw was less than prompt, as it was entered more

than one month after rearraignment. Furthermore, the court

originally found that Syder’s plea was knowing and voluntary,

having inquired as to whether it had been entered after

consultation with counsel. Considering the totality of the

circumstances, we find no abuse of discretion.

3 Syder also complains about the district court’s failure to

order an evidentiary hearing on his duress claim. We are

unmoved. Syder’s duress allegations were unsubstantiated and

conclusory. In such a context, the Seventh Circuit has held that

an evidentiary hearing is unnecessary. See United States v.

Fountain, 777 F.2d 351, 358 (7th Cir. 1985) cert. denied, 475

U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986).

Conclusion

For the foregoing reasons,

court is

AFFIRMED.

10

the judgment of the district