US v. Francis Davi
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cr-00080-JAG-1 Copies to all parties and the district court/agency. [999134151].. [12-4542]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4542
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCIS
CURTIS
As-Salafi,
DAVIS,
a/k/a
Abdul-Malik
Lbnfrancis
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:11-cr-00080-JAG-1)
Argued:
May 17, 2013
Decided:
June 20, 2013
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Keith Nelson Hurley, KEITH N. HURLEY, P.C., Richmond,
Virginia, for Appellant.
Angela Mastandrea-Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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WYNN, Circuit Judge:
Eight
weeks
after
pleading
guilty
in
district
court,
Defendant–Appellant Francis C. Davis moved to withdraw his plea.
The district court denied Davis’s motion and sentenced him to
the plea-recommended twenty-year prison term.
On appeal, Davis argues that the district court judge erred
in not recusing himself from hearing Davis’s motion to withdraw
his
plea.
Davis
impermissibly
also
court
For
the
the
we
plea
district
therefore abused its discretion in denying Davis’s motion.
below,
the
the
and
discussed
in
that
negotiations
reasons
participated
argues
affirm
the
rulings
of
district court.
I.
In March 2011, Davis was indicted for robbery affecting
commerce, using a firearm in a crime of violence, and possession
of a firearm by a convicted felon. 1
Davis pled not guilty to all
of the charges, and the case was set for trial.
Before trial,
Davis’s counsel filed a motion to suppress statements Davis made
to law enforcement, and, relevant to this appeal, Davis filed a
pro se motion to appoint new counsel.
1
Davis has legally changed his name. But because his name
was Davis at the time of most events underlying this appeal, we
refer to him here as Davis.
2
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At a hearing in December 2011, the district court granted
the motion to suppress and discussed the pro se motion with
Davis.
After that discussion, Davis indicated that he would
proceed with current counsel.
he
could
face
imprisonment.
a
The court then advised Davis that
mandatory
minimum
term
of
fifty
years’
At the end of the hearing, the court told Davis
“you have got a difficult situation if you get convicted” and
that everyone in the courtroom “would hate to see your life
ruined in that way.”
J.A. 48.
In January 2012, Davis’s counsel and the government reached
a plea agreement whereby the government agreed to recommend a
twenty-year prison sentence. 2
Davis initially accepted but on
the morning of the plea hearing, Davis proposed a modification
that
the
government
rejected.
At
the
hearing,
the
court
discussed with Davis the options of pleading versus going to
trial:
If you are found guilty of both of these
offenses, you are going to go to jail, at a
minimum, for 50 years. And that is – they
are offering you a way to get out of that
through whatever sort of a plea bargain they
offered you. It looks like they have a lot
of witnesses. But, you know, you and [your
2
The government stated at oral argument that it had
offered the plea agreement based on its belief that a key
witness would be unavailable for trial.
The government later
learned that the witness would be available but chose to honor
its offer.
3
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attorney] need to make that choice. But – I
probably have a reputation as a light
sentencer – but I will tell you, there is
nothing I can do about those, about that 50year sentence. I cannot give you anything
less than that if you are convicted of both
those offenses.
J.A. 57-58.
The court also said to Davis:
[N]ow is the time for you to make a decision
whether you want to take the 20 year
sentence or face the possibility of 50 years
on the gun charges alone, plus more time, if
any, on the robbery charge. . . . I urge you
to think carefully before you turn down that
offer. . . . [Y]ou and [your attorney] know
more about this case than I do. And maybe
they really don’t have good witnesses. But I
sort of doubt that. So, you know, you have
got some exposure here. What you do about
that exposure is entirely up to you.
J.A. 59.
The court suggested that with a 50-year sentence,
Davis, who was 35 years old at the time, “would die in jail
probably.”
an
hour
J.A. 61.
to
allow
Then the court adjourned for approximately
Davis
to
consult
with
his
counsel.
return, Davis indicated that he would plead guilty.
Upon
And, after
determining Davis was pleading knowingly and voluntarily, the
court accepted Davis’s plea and scheduled sentencing.
Almost two months later, Davis filed a pro se motion to
withdraw
counsel
his
and
guilty
plea,
stating
that
alleging
the
ineffective
court’s
advice
assistance
that
about” his decision persuaded him to accept the plea.
4
he
of
“think
J.A. 104.
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Davis also filed a pro se motion to have new counsel appointed.
The district court granted Davis’s motion for new counsel and
scheduled
a
hearing
on
Davis’s
motion
to
withdraw
his
plea.
After the hearing, the district court denied Davis’s motion to
withdraw his plea.
the
indictment
voluntariness
motions
and
Thereafter, Davis, pro se, moved to dismiss
and
of
hold
his
an
plea.
sentenced
evidentiary
The
Davis
to
hearing
district
the
the
denied
court
on
both
plea-recommended
term
of
twenty years’ imprisonment.
On appeal, Davis argues that the district court judge was
required
to
recuse
withdraw
his
plea
motion.
himself
and
from
abused
hearing
his
Davis’s
discretion
in
motion
denying
to
that
We address each argument in turn.
II.
Davis
required
to
first
argues
recuse
that
himself
withdraw his guilty plea.
the
from
district
reviewing
court
Davis’s
judge
motion
was
to
Both parties agree that Davis raises
this issue for the first time on appeal.
We therefore review it
only for plain error, Fed. R. Crim. P. 52(b), meaning Davis must
show that: (1) an error occurred; (2) it was plain; and (3) it
affected his substantial rights.
United States v. Penniegraft,
641 F.3d 566, 575 (4th Cir. 2011).
This Court exercises its
discretion to correct such an error only when “failure to do so
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would
result
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in
a
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miscarriage
of
justice,
such
as
when
the
defendant is actually innocent or the error seriously affect[s]
the
fairness,
proceedings.”
integrity
or
public
reputation
of
judicial
Id. (internal quotation marks omitted).
Davis contends that recusal was mandatory under 28 U.S.C. §
455(b)(1), which provides that a judge shall disqualify himself
“[w]here he has personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
the proceeding.”
required
Further, Davis argues that Section 455(a) also
recusal
because
one
might
reasonably
partiality of a judge reviewing himself.
question
the
See id. § 455(a) (“Any
justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”).
The bar for recusal is quite high—“courts have only granted
recusal
conduct.”
2011).
motions
Belue
Moreover,
extrajudicial
in
cases
v.
Leventhal,
“both
source
§
involving
640
455(a)
limitation”
particularly
F.3d
and
§
meaning
567,
573
455(b)(1)
that
egregious
(4th
Cir.
carry
an
generally
a
judge’s bias or prejudice must “result in an opinion on the
merits [of a case] on some basis other than what the judge
learned from his participation in the case.”
(internal quotation marks and citations omitted).
6
Id. at 572–73
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Here, Davis fails to identify any “personal knowledge” of
the district court judge that came from an extrajudicial source:
The judge’s knowledge of the case stems solely from his having
presided over it.
And it was the district court’s judicial duty
to ensure that Davis’s plea was knowing and voluntary.
Further,
Davis fails to show, and our review of the record reveals no
indication
of,
government.
bias
The
against
district
Davis
court
or
favoritism
judge
toward
carefully
the
considered
Davis’s motion to withdraw under the appropriate legal framework
after having granted Davis new counsel to represent him in that
motion hearing.
In sum, Davis has failed to show that the district court
plainly erred by violating Section 455.
III.
Davis also argues that the district court erred in denying
his motion to withdraw his plea.
of discretion.
We review this issue for abuse
See, e.g., United States v. Ubakanma, 215 F.3d
423, 424 (4th Cir. 2000) (“We review the denial of a motion to
withdraw a guilty plea for abuse of discretion.”).
A
plea.
defendant
Rather,
has
he
supports withdrawal.
no
must
absolute
show
right
that
a
to
“fair
withdraw
and
just
a
guilty
reason”
United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991) (citing Fed. R. Crim. P. 32(d)).
7
In Moore, this
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Court delineated six factors district courts should consider to
determine whether a defendant has met this burden:
(1)
whether
the
defendant
has
offered
credible evidence that his plea was not
knowing or not voluntary, (2) whether the
defendant has credibly asserted his legal
innocence, (3) whether there has been a
delay between the entering of the plea and
the filing of the motion, (4) whether
defendant
has
had
close
assistance
of
competent counsel, (5) whether withdrawal
will cause prejudice to the government, and
(6) whether it will inconvenience the court
and waste judicial resources.
Id.
Here,
the
district
court
applied
the
Moore
factors,
concluded that the three most important factors—voluntariness,
innocence, and close assistance of counsel—cut against Davis,
and thus denied Davis’s motion.
See United States v. Sparks, 67
F.3d 1145, 1154 (4th Cir. 1995) (“The factors that speak most
straightforwardly to the question whether the movant has a fair
and
just
reason
to
upset
settled
systemic
expectations
by
withdrawing her plea are the first, second, and fourth.”).
The bulk of Davis’s appeal is devoted to the first Moore
factor, voluntariness.
Specifically, Davis contends that the
district court’s dialogue with him at both the December 2011 and
January
2012
hearings
amounted
to
improper
judicial
participation in plea negotiations in violation of Federal Rule
of Criminal Procedure 11(c) and coerced him into accepting the
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Upon
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close
review
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of
the
record,
we
conclude
that
although the district court judge may have been overly cautious
in his efforts to ensure Davis made a fully informed decision,
those efforts did not amount to coercion.
Federal
courts
“must
Rule
not
of
Criminal
Procedure
participate”
in
plea
11(c)
commands
discussions.
that
This
“prohibition on judicial involvement in plea negotiations guards
against the high and unacceptable risk of coercing a defendant
to enter into an involuntary guilty plea.”
United States v.
Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (internal quotation
marks omitted).
A court, however,
must ensure that a plea is
knowing and voluntary before it accepts the plea.
E.g., United
States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003).
And Rule
11, which sets out the information a court must convey to a
defendant to ensure that he understands his plea, specifically
requires a court to “inform the defendant of, and determine that
the defendant understands . . . any mandatory minimum penalty .
. . .”
Fed. R. Crim. P. 11(b)(1)(I).
Here, the district court engaged Davis to ensure that he
understood the consequences of pleading versus going to trial in
the context of the potential penalties Davis faced. 3
3
The court
The Supreme Court recently underscored that the pleacolloquy requirements “come into play after a defendant has
agreed to plead guilty” and the bar on judicial participation
(Continued)
9
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made
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clear
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that
the
choice
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was
Davis’s.
And
after
Davis
accepted the plea agreement, the district court engaged in a
thorough Rule 11 colloquy, inquiring about whether anyone had
threatened Davis to get him to plead guilty, whether he was
pleading of his own free will, and whether he believed pleading
was in his best interest.
See Bowman, 348 F.3d at 417 (“The
most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which
the guilty plea was accepted.”); United States v. Puckett, 61
F.3d 1092, 1099 (4th Cir. 1995) (“[A]n appropriately conducted
Rule 11 proceeding . . . raise[s] a strong presumption that the
plea is final and binding.”) (internal quotation marks omitted).
Accordingly, the district court did not err in ruling that Davis
failed to show that his plea was not knowing or voluntary.
The
district
court’s
analysis
factors requires less comment.
innocence—the
district
court
of
the
five
other
Moore
Regarding the second factor—
concluded
that,
based
on
the
Statement of Facts, Davis failed to make a credible assertion of
innocence.
The district court noted that Davis “ha[d] not made
“becomes operative before a defendant has decided whether to
plead guilty.” United States v. Davila, No. 12-167, slip op. at
10 (U.S. June 13, 2013). In Davila, the government acknowledged
that a Rule 11(c) violation had occurred.
Here, we decline to
find
that
the
district
court’s
comments
constituted
participation in the plea negotiations. See id. at 11.
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much of a showing that he was innocent,”
declared
under
oath
that
he
J.A. 187, and Davis
understood
the
charges
pleading guilty because he was, in fact, guilty.
Angelone,
absent
261
F.3d
“clear
377,
and
396
(4th
convincing
Cir.
2001)
evidence
and
See Beck v.
(holding
to
was
the
that,
contrary,”
defendant is “bound by his representations” made during the plea
colloquy).
Thus, the second Moore factor does not weigh in
Davis’s favor.
On the third factor, timing, Davis filed his motion almost
two months after pleading guilty.
A district court could count
a delay of this length against a defendant.
See Moore, 931 F.2d
at 248 (“Moore long delayed between the time of the pleas and
the time of entering the motion . . . . He waited six weeks
before
giving
pleas.”).
the
notice
of
his
intent
to
move
to
withdraw
his
Nonetheless, the district court here did not, noting
limitations
imposed
on
Davis
by
his
imprisonment.
Regardless, the timing factor does not itself constitute a fair
and just reason for withdrawal.
Davis’s argument regarding the fourth Moore factor, close
assistance of counsel, is similarly unpersuasive.
can
establish
this
factor
only
by
showing
that
A defendant
“counsel’s
performance fell below an objective standard of reasonableness.”
Sparks, 67 F.3d at 1153 (internal quotation marks omitted).
We
agree with the district court that there is no record evidence
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that Davis’s attorney performed below an objective standard of
reasonableness.
Although—as
the
district
court
noted—Davis
complained about his attorney, he declared under oath that he
was satisfied with his counsel, who had, in fact, won a pretrial motion to suppress prosecutorial evidence early in the
case.
Thus, this factor also weighs against Davis.
Finally, regarding the last two Moore factors, the district
court acknowledged that the government intended to call nearly
one
dozen
witnesses—many
Nonetheless,
government
the
and
court
of
whom
concluded
inconvenience
to
reside
that
the
“dispositive” in denying Davis’s motion.
out
of
prejudice
judiciary
J.A. 189.
state.
to
the
were
not
Further,
when a district court determines that “the first four factors .
. . militate against granting the defendant’s motion, it can
reasonably
refrain
from
trying
withdrawal
of
plea
would
the
inconvenience the court.”
to
ascertain
prejudice
the
just
how
government
Sparks, 67 F.3d at 1154.
much
and
Clearly,
then, Davis fails to mount an abuse of discretion argument based
on these factors.
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IV.
Concluding that the district court judge neither erred in
not
recusing
himself
nor
abused
his
discretion
in
denying
Davis’s motion to withdraw his plea, we affirm.
AFFIRMED
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