United States v. Joe Cruz

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, JAMES B. LOKEN and STEVEN M. COLLOTON. Steven M. Colloton, Authoring Judge (PUBLISHED) [3805099] [10-2926]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2926
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United States of America,
Appellee,
v.
Joe Cruz,
Appellant.

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* Appeal from the United States
* District Court for the
* Southern District of Iowa.
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Submitted: March 18, 2011
Filed: July 7, 2011
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Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Joe Cruz pled guilty to conspiring to distribute 500 grams or more of a mixture
or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)
and 846. On March 23, 2010, the district court1 adopted the report and
recommendation of a magistrate judge2 and accepted his plea. On April 13, 2010,

1

The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
2

The Honorable Celeste Bremer, United States Magistrate Judge for the
Southern District of Iowa.

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Cruz moved to withdraw his plea. The district court denied the motion and sentenced
Cruz to 300 months’ imprisonment. Cruz appeals, and we affirm.
I.
In October 2009, the police effected a traffic stop and discovered approximately
2.5 pounds of methamphetamine in a vehicle driven by Cruz and occupied by Uriel
Mora Gonzalez. A grand jury indicted Cruz and Gonzalez on drug trafficking
charges, and the defendants moved to suppress the evidence obtained from the
vehicle. The district court denied the motions to suppress and a motion to sever filed
by Gonzalez.
On February 25, 2010, Cruz entered a plea agreement in which he pled guilty
to a conspiracy charge in exchange for the government’s agreement to dismiss a
second charge. The government also agreed not to seek an enhanced sentence based
on Cruz’s prior felony drug convictions. See 21 U.S.C. §§ 841(b)(1)(A), 851.
On February 26, 2010, a magistrate judge held a change of plea hearing. At the
hearing, Cruz stated that he had conferred with his attorney, had read the plea
agreement and everything else his attorney provided him, and was satisfied with his
attorney’s services. Cruz testified that no one had made any threats or promises to
him regarding the plea agreement or tried to coerce him into pleading guilty. After
Cruz informed the court that he had taken cold medication within 24 hours of the
hearing, the magistrate judge questioned him on the effect of the medication. Cruz
responded that the medicine made him feel a little dopey, but that he was able to
follow what was happening, understood the significance of the proceeding, and could
function fine. The magistrate judge also advised Cruz of the possible sentencing
consequences, including that he did not have the right to withdraw his plea if he was
dissatisfied with his sentence. The magistrate judge found that Cruz entered the plea
knowingly, voluntarily, and intelligently, and without any force, threats, or promises.
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Cruz lodged no objection to the report and recommendation; the district court adopted
it, and accepted Cruz’s guilty plea on March 23, 2010.
On April 13, 2010, the day after the probation office distributed its first draft
of Cruz’s presentence report, Cruz moved to withdraw his guilty plea and replace his
attorney. The district court appointed new counsel and held a hearing on the motion
to withdraw the plea. At the hearing, Cruz asserted his innocence. He alleged that his
former counsel was ineffective, that he was pressured into pleading guilty, and that
he was confused at the change of plea hearing. The district court denied the motion
to withdraw, and sentenced Cruz to 300 months’ imprisonment.
II.
This court reviews the denial of a motion to withdraw a plea for an abuse of
discretion. United States v. Alvarado, 615 F.3d 916, 920 (8th Cir. 2010). A defendant
may withdraw a guilty plea that has been accepted by a court, before sentence is
imposed, if “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The defendant bears the burden to
establish fair and just grounds for withdrawal. United States v. Rollins, 552 F.3d 739,
741 (8th Cir. 2009). Even if the defendant meets this burden, the court must consider
other factors before granting the motion, namely, “whether the defendant asserts his
innocence of the charge, the length of time between the guilty plea and the motion to
withdraw it, and whether the government will be prejudiced if the court grants the
motion.” United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006)
(internal quotations omitted). We conclude that Cruz’s allegations of ineffective
assistance of counsel, confusion, pressure, and innocence do not establish a fair and
just reason to withdraw his plea.
“Defense counsel’s performance can serve as the requisite ‘fair and just reason’
for withdrawal only if [the defendant] demonstrates both that his attorney’s
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performance was deficient and that he was prejudiced by it.” United States v.
McMullen, 86 F.3d 135, 137 (8th Cir. 1996). To establish deficient performance, “the
defendant must show that counsel’s representation fell below an objective standard
of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To show
prejudice, the defendant must prove “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.” McMullen, 86 F.3d at 137 (internal quotations omitted). The district court
did not abuse its discretion in concluding that Cruz failed to satisfy these
requirements.
Cruz alleges that his attorney’s performance was deficient due to his failure to
bring up “lies” told by Drug Enforcement Administration agents at the suppression
hearing. He points to testimony by the agents that they witnessed Cruz leave a
Kentucky Fried Chicken restaurant shortly before stopping him when there allegedly
was no such restaurant in the vicinity of the stop. He complains that agents said they
discovered drugs in the trunk, when the drugs actually were behind a door panel. He
contends that the agents falsely claimed that Cruz’s vehicle was “weaving and
speeding,” although they issued no traffic ticket. These allegations are unsupported
by evidence or amount to minor discrepancies, and counsel’s failure to pursue them
at the suppression hearing was not objectively unreasonable. Cruz also failed to
establish prejudice. There is no showing that additional cross-examination of the
agents would have changed the outcome of the suppression hearing or Cruz’s decision
to plead guilty.
Cruz further asserts that he was confused during the plea hearing due to his cold
medication. The district court’s refusal to accept this contention is amply supported
by the record. At the plea hearing, Cruz stated under oath that the cold medicine did
not affect his ability to understand the proceedings or his ability to function, admitted
to the charged crime, and engaged in a detailed discussion regarding the factual basis
of the charges. At the hearing on his motion to withdraw, Cruz admitted again that
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he understood the magistrate judge on the day of the plea hearing and was not
confused by any of the questions. Later in that hearing, he claimed that the cold
medicine “maybe” affected his ability to understand what was happening at the plea
hearing, and “[c]ould have confused me a little.” This evidence falls well short of
establishing an abuse of discretion by the district court in denying the motion to
withdraw the plea. See United States v. McNeely, 20 F.3d 886, 888 (8th Cir. 1994).
Cruz’s claim that his attorney pressured him into pleading guilty is also
unsupported by the record. Cruz testified at the plea hearing that no one made any
threats or promises, or tried to coerce him into pleading guilty. At the hearing on his
motion to withdraw, Cruz stated that his attorney advised him to plead guilty because
he had little chance of success at trial, but in the end it was Cruz’s decision to plead
guilty. This attorney also testified at the hearing and stated that he did not threaten or
coerce Cruz, and that he had discussed the case and potential outcomes in detail with
Cruz prior to the plea hearing. The magistrate judge also thoroughly explained the
consequences of a guilty plea to Cruz at the change of plea hearing. Many defendants
face difficult choices about whether to plead guilty or proceed to trial, and the
potential consequences of the different options are relevant to making that choice. An
attorney’s assessment of the likely outcome at a trial is one significant factor in a
defendant’s informed decisionmaking process. It does not amount to coercion that
renders a plea involuntary.
Cruz now claims that he is innocent, but he presented no convincing evidence
to establish that his prior admissions of guilt were untrue. A conclusory assertion of
innocence “simply does not satisfy his burden of showing a fair and just reason for
permit[ting] a withdrawal of what he had solemnly made under oath.” See United
States v. Sampson, 606 F.3d 505, 508 (8th Cir. 2010) (alteration in original) (internal
quotations omitted).

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The judgment of the district court is affirmed.
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