United States v. Richard Johnson

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Raymond W. Gruender (UNPUBLISHED) [4044381] [12-2820, 12-2863]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2820
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Richard Johnson
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-2863
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Detric Conway
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
____________
Submitted: March 15, 2013
Filed: June 12, 2013
[Unpublished]
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Detric Conway pleaded guilty, pursuant to a plea agreement, to interference
with commerce by robbery on June 21, 2010, in violation of 18 U.S.C. § 1951(a)
("Count 1"); using, carrying, and possessing a firearm in furtherance of a crime of
violence, that is interference with commerce by robbery on June 21, 2010, in
violation of 18 U.S.C. § 924(c)(1)(A) ("Count 2"); robbery involving a controlled
substance, aiding and abetting, on July 13, 2010, in violation of 18 U.S.C. §§ 2118(a)
2118(c)(1), and 2 ("Count 5"); and using, carrying, and possessing a firearm in
furtherance of a crime of violence, that is robbery involving a controlled substance,
aiding and abetting, on July 13, 2010, in violation of 18 U.S.C. § 924(c)(1)(A)
("Count 6"). Richard Johnson pleaded guilty, pursuant to a plea agreement, to Count
6 and using, carrying, and possessing a firearm in furtherance of a drug trafficking
crime, that is possession with intent to distribute a controlled substance
(hydrocodone), aiding and abetting, on July 13, 2010, in violation of 18 U.S.C.
§ 924(c)(1)(A) ("Count 8"). On appeal, Conway and Johnson argue that the district
court1 abused its discretion in denying their motions to withdraw their guilty pleas.
We affirm.
I. Background

1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
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Conway was charged with eight offenses2 stemming from his alleged
participation in two pharmacy robberies. Johnson was charged with four of the eight
offenses3 for his alleged participation in one of the pharmacy robberies.
A. Conway
Conway subsequently pleaded guilty pursuant to a plea agreement to Counts
1, 2, 5, and 6 of the indictment. Paragraph 17 of the plea agreement discussed
Conway's cooperation, providing:
17. The government agrees to advise the probation office and
the court of the extent and nature of the defendant's cooperation. The
defendant's agreement to cooperate with the government is made
pursuant to U.S.S.G. [§] 1B1.8(a) & (b). If the defendant provides full,
complete, truthful, and substantial cooperation to the government, the
government reserves the complete right to make the decision on the
nature and extent of the defendant's cooperation, and then will move for
a downward departure under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or
Rule 35 of the Federal Rules of Criminal Procedure. Both parties
acknowledge that the district court has the power to deny a motion for
downward departure. The defendant hereby agrees that the government

2

In addition to Counts 1, 2, 5, and 6, the indictment also charged Conway with
knowingly and intentionally possessing with intent to distribute hydrocodone, a
Schedule II controlled substance on June 21, 2010, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) ("Count 3"); knowingly using, carrying, and possessing a
firearm in furtherance of a drug trafficking crime—possession with intent to
distribute hydrocodone as charged in Count 3—in violation of 18 U.S.C.
§ 924(c)(1)(A) ("Count 4"); knowingly and intentionally possessing with the intent
to distribute hydrocodone, a Schedule II controlled substance, aiding and abetting, on
July 13, 2010, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(C), and 2 ("Count
7"); and Count 8.
3

In addition to Counts 6 and 8, the indictment also charged Johnson with
Counts 5 and 7.
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does not promise, by the terms of this agreement, to file a Section 5K1.1,
18 U.S.C. § 3553(e) or Rule 35 motion.
(Emphases added.)
During the change-of-plea hearing, Conway acknowledged under oath that his
attorney had explained the nature of the charges against him, that his "willingness to
plead guilty . . . resulted in [a] 14-page [plea] agreement" with the government, and
that he had signed the plea agreement. Conway agreed that the "plea agreement
. . . contain[ed] [his] full understanding of what [he] negotiated with the government,"
he "underst[oo]d the agreement," no one made him "any promises or assurances
. . . other than what's reflected in th[e] agreement itself," and no one had "in any way
attempted to force [him] to plead guilty." Conway confirmed that he was "pleading
guilty of [his] own free will because [he is] guilty."
The court then reviewed the penalties set forth in the plea agreement and
confirmed Conway's understanding that he was subject to (1) a maximum term of 20
years' imprisonment on Count 1; (2) a maximum term of life imprisonment and a
mandatory minimum term of seven years' imprisonment on Count 2; (3) a maximum
term of 25 years' imprisonment on Count 5; and (4) a maximum term of life
imprisonment and a mandatory minimum term of 25 years' imprisonment on Count
6. The court also asked Conway whether he had discussed with his attorney the plea
agreement's statement that Count 6 "shall not run concurrently with any other term
of imprisonment imposed." Conway replied that he had discussed the statement and
understood it, stating, "It will be like stacked, 25 plus seven."
Before accepting Conway's guilty pleas to Counts 1, 2, 5, and 6, the district
court inquired whether Conway "need[ed] to discuss anything with [his] attorney,"
and Conway responded, "No, sir." Conway then pleaded guilty to the aforementioned
counts, and the district court accepted the guilty pleas after finding that Conway was
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"fully competent and capable of entering informed pleas," "aware of the nature of the
charges and the consequences of [his] guilty pleas," and entering the pleas knowingly
and voluntarily.
Almost ten months after the change-of-plea hearing, Conway moved to
withdraw his guilty pleas. First, he asserted that he "was unclear as to what the
minimum sentence would be on Count Two . . . and Count Six" because "he was lead
to believe that he would be facing ten to twelve years rather tha[n] the current thirtytwo years of imprisonment." But Conway "admit[ted] his guilt to those offenses."
Second, he argued "that the [g]overnment had made a promise that [it] would
interview him for the purposes of cooperation in being truthful about his role in the
incidents" but "ha[d] never interviewed [him]." Finally, he "assert[ed] that Count Six,
using, carrying, and possessing a firearm in furtherance of a drug trafficking crime,
occurred at the completion of the robbery when the participations [sic] were fleeing."
He maintained "that he cannot be guilty of th[is] . . . [§] 924(c) offense as he was
caught prior to the commission of 'furthering a drug trafficking offense.'"4
The district court held a hearing on Conway's motion to withdraw his guilty
pleas. At the hearing, Conway's attorney argued that the court should permit Conway
to withdraw his guilty pleas because Conway believed that he was only facing ten to
12 years' imprisonment. According to Conway, his previous counsel "came to see
[him] about three times before [he] signed [his] [p]lea [a]greement." He testified that
he signed the plea agreement because counsel repeatedly told him "that with a
[§] 5(k)(1), you [are] going to get 10 to 12 years." Conway explained that he wanted
to go to trial so that the truth would come out about his involvement in the robberies.
4

Count 6 actually charged Conway with using, carrying, and possessing a
firearm in furtherance of a crime of violence, that is robbery involving a controlled
substance. Count 8, to which Conway did not plead guilty and which was
subsequently dismissed, concerned using, carrying, and possessing a firearm in
furtherance of a drug trafficking crime.
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The district court then queried Conway about the change-of-plea hearing at which the
court reviewed with Conway the possible sentencing ranges in great detail. In
response, Conway asserted that he did not know what a "mandatory minimum" was
and that he was focused on getting ten to 12 years' imprisonment based on the filing
of a § 5K1.1 motion. But upon further questioning, Conway acknowledged knowing
that there was a 25-year mandatory minimum on Count 6 and that Count 6 would run
consecutively with any other term of imprisonment imposed.
On cross-examination by the government, Conway explained that he pleaded
guilty based on his prior counsel's advice that "with a [§] 5(k)(1), [he] would get 10
to 12." The government then questioned Conway about his motion to withdraw his
guilty pleas in which Conway "assert[ed] that [he] [was] promised [a §] 5(k)." The
government asked Conway where this promise was located in the plea agreement, and
Conway responded, "I never said nothing about no promise." Thereafter, Conway
claimed that the government "did not honor the [§] 5(k)(1)." The government then
reviewed ¶ 17 of the plea agreement with Conway. When asked what the last sentence
of ¶ 17 said, Conway replied, "Does not promise any specific sentence." Conway
agreed that this did not "promise [him] anything."
The district court denied Conway's motion to withdraw his guilty pleas, finding
"no fair and just reason" to justify the withdrawal. The court explained that "at the
change of plea hearing . . . the [c]ourt went into substantial detail to explain the
. . . mandatory minimums and the sentences that could be possible, and Mr. Conway
said he understood that." The court also noted that Conway never objected to the
presentence report (PSR), which was dated almost five months prior to Conway's
motion to withdraw his guilty pleas.
At sentencing, the district court sentenced Conway to 48 months' imprisonment
on Counts 1 and 5, 84 months' imprisonment on Count 2 to run consecutive to Counts

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1 and 5, and 300 months' imprisonment on Count 6 to run consecutive to the other
counts.
B. Johnson
Johnson also pleaded guilty, pursuant to a plea agreement, to Counts 6 and 8
of the indictment. Paragraph 2 of the plea agreement set forth the factual basis
supporting the guilty pleas. It stated, in relevant part:
h. The narcotics taken from the pharmacy were subsequently
collected and identified by the pharmacist at Hometown Pharmacy as
Hydrocodone, Morphine, Oxycontin as well as several other narcotic
drugs. The replacement cost of the drugs taken from the pharmacy was
well in excess of five hundred dollars. Hometown Pharmacy is
registered with the Drug Enforcement Administration. Based on the
quantity of controlled substances that were taken in the robbery and
other evidence, the government could prove that the defendant and other
individuals involved with the defendant in the robbery intended to
distribute these controlled substances and that a firearm was used and
carried during and in relation to this Drug Trafficking offense.
(Emphasis added.)
During the change-of-plea hearing, Johnson stated under oath that he wanted
to plead guilty to Counts 6 and 8, pursuant to a plea agreement, following his
discussions with his attorney and the government. He acknowledged that he signed
the plea agreement and that it "contain[ed] [his] full understanding of what [he]
negotiated with the government." He also confirmed that no one "made any promises
or assurances to [him] of any kind to get [him] to execute the agreement, other than
what's actually contained in the agreement itself" and that he was "pleading guilty of
[his] own free will because [he is] guilty."

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The district court discussed ¶ 2 of the plea agreement with Johnson, inquiring
whether Johnson "believe[d] the government needs to prove anything other than
what's reflected within paragraph 2 in order to meet the government's burden of proof
beyond a reasonable doubt representing the allegations set forth within Counts 6 and
8 of the indictment." Johnson responded, "No, Your Honor." Johnson confirmed that
he had discussed ¶ 2 of the plea agreement with counsel and that he "believe[d] the
government could and would prove what's reflected in that paragraph."
Johnson pleaded guilty to Counts 6 and 8, and the district court accepted his
guilty pleas, finding that he was "fully competent and capable of entering an informed
plea" and "aware of the nature of the charges and the consequences of [his] guilty
plea." The court also found that Johnson's "pleas of guilty are knowing and voluntary
pleas which are supported by an independent basis in fact containing the essential
elements of the offense."
Approximately nine months after the change-of-plea hearing, Johnson moved
to withdraw his guilty pleas. In his motion, Johnson argued that he desired to plead
guilty to Counts 5 and 6, and he admitted his guilt to those offenses. But he argued
that he was not permitted to plead to those two offenses but instead had to plead to
all counts or face a jury on all counts. According to Johnson, on the eve of trial, the
government proposed a plea to the two § 924(c) counts—Counts 6 and 8. Johnson
was informed that a codefendant would testify against him. Johnson asserted that
"because he could not plead to what he knew in his heart he was guilty of, he chose
to accept the government's offer." Johnson admitted to knowing that because he
pleaded guilty to Count 8, he automatically faced a minimum sentence of 25 years on
that count alone; however, he argued that "the whirlwind of events in the previous
days and hours clouded his mind and . . . his plea to the second 924(c) count was not
voluntary." According to Johnson, Count 7, possession of hydrocodone with intent
to distribute, and Count 8, using, carrying, and possessing a firearm in furtherance of
a drug trafficking crime, occurred at the completion of the robbery when the
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participants were fleeing the scene. Johnson maintained that "he cannot be guilty of
the second 924 (c) offense as he was caught prior to the commission of 'furthering a
drug trafficking offense.'" Johnson asserted his innocence to the second § 924(c)
charge and argued that the government would not be substantially prejudiced by the
withdrawal. Finally, he claimed that the second § 924(c) charge was not supported
by any of the government's evidence, i.e., no allegation of a second crime of violence
being committed or a second crime of violence involving the use of a firearm.
The district court held a hearing on Johnson's motion to withdraw his guilty
pleas. Johnson's attorney argued that Johnson "wish[ed] to withdraw his plea based
on the whirlwind of events in the previous days and hours, and to be more specific,
there were issues regarding what Mr. Johnson could and could not plead to."
According to counsel, Johnson had filed a notice of his intent to plead to Counts 5
and 6, but he was not permitted to do so. Instead, Johnson's options were to plead
guilty, pursuant to the government's offer, to the two § 924(c) counts—Counts 6 and
8—or proceed to trial. The court interjected, clarifying that it "had no interest in that
matter" and "was not involved in that." Johnson's attorney responded that, based on
her understanding, "the Court would not proceed that way." In response, the court
explained that it "can't negotiate with a defendant in any manner." Thereafter,
Johnson's attorney explained that after learning that a codefendant would testify
against him, Johnson "at the last minute, decided to plead to the government's offer
of the two [§] 924(c) counts and that came on the eve of trial." She also discussed
Johnson's concern after pleading guilty regarding "whether he could have been
actually found guilty of the drugs in connection with the firearm possession with
intent to distribute," considering that "he was caught shortly after the robbery was
committed."
The district court concluded that "no fair and just reason" existed supporting
Johnson's withdrawal of the guilty pleas. The court noted that the plea agreement
listed the possible sentencing ranges and that it had conducted "a detailed hearing
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where the [c]ourt went through the change of plea that listed sentencing ranges." The
court pointed out that Johnson moved to withdraw his guilty pleas after preparation
of the PSR and addendum.
At sentencing, the district court sentenced Johnson to 384 months'
imprisonment, consisting of 84 months on Count 6 and 300 months on Count 8 to be
served consecutively to each other.
II. Discussion
On appeal, Conway and Johnson assert that the district court abused its
discretion in denying their motions to withdraw their guilty pleas.
"After a guilty plea is accepted but before sentencing, a defendant may
withdraw the plea if he establishes 'a fair and just reason for requesting
the withdrawal.'" United States v. Goodson, 569 F.3d 379, 382 (8th Cir.
2009) (quoting Fed. R. Crim. P. 11(d)(2)(B)). "While the standard is
liberal, the defendant has no automatic right to withdraw a plea." United
States v. Ramirez–Hernandez, 449 F.3d 824, 826 (8th Cir. 2006). "Even
if such a fair and just reason exists, before granting the motion a court
must consider '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.'" Id. (quoting United States v. Nichols, 986 F.2d
1199, 1201 (8th Cir. 1993)). However, "[i]f the defendant fails to
establish a fair and just reason for withdrawing the guilty plea, the trial
court need not address the remaining considerations." Nichols, 986 F.2d
at 1201. We review the district court's decision not to allow the
withdrawal of a guilty plea for an abuse of discretion. United States v.
Maxwell, 498 F.3d 799, 801 (8th Cir. 2007); United States v. Wicker, 80
F.3d 263, 266 (8th Cir. 1996).
United States v. Heid, 651 F.3d 850, 853–54 (8th Cir. 2011).

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A. Conway
Conway argues that the government acted in bad faith and breached ¶ 17 of the
plea agreement. Specifically, Conway asserts that the government failed to assess
Conway's cooperation and consider moving for a downward departure under U.S.S.G.
§ 5K1.1 based on that cooperation. According to Conway, because the government
acted in bad faith, the district court abused its discretion in denying his motion to
withdraw his guilty pleas.5
"When the government fails to fulfill the terms of a plea agreement, an
unsatisfied defendant may seek specific performance or may seek to withdraw his
plea." United States v. Kelly, 18 F.3d 612, 615–16 (8th Cir. 1994). "While '[a]n
express promise to file a motion for downward departure under 18 U.S.C. section
3553(e) or section 5K1.1 . . . would be binding on the government,' . . . Kelly, 18
F.3d. [at] 616 . . . , where no such express promise exists, the government's discretion
to file a motion under § 3553(e) is preserved." United States v. Pamperin, 456 F.3d
822, 824 (8th Cir. 2006) (first alteration in original) (citing United States v. LiconaLopez, 163 F.3d 1040, 1043 (8th Cir. 1998)). "Where the government has so reserved
its discretion, the prosecutor's refusal to make a downward departure motion cannot
be challenged unless the defendant can make a 'substantial threshold showing' that

5

The government argues that we should apply plain-error review to Conway's
argument on appeal because it varies from the argument presented in his motion to
withdraw his guilty pleas. According to the government, Conway's argument in his
motion "that the [g]overnment had made a promise that they would interview him for
purposes of cooperation in being truthful about his role in the incidents" but "ha[d]
never interviewed [him]" is entirely different from his argument on appeal, i.e., that
the government unconstitutionally breached the plea agreement in bad faith by not
moving for a downward departure under § 5K1.1. Because we determine that no
error—plain or otherwise—occurred, we need not definitively resolve which standard
of review applies.
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the refusal was in bad faith6, irrational, or based on an unconstitutional motive."
United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999).
In the present case, the government "expressly retained" its discretion to file
a § 5K1.1 motion. See Pamperin, 456 F.3d at 824. Paragraph 17 of the plea agreement
advised Conway that "the government reserve[d] the complete right to make the
decision on the nature and extent of the defendant's cooperation," and Conway
"agree[d] that the government does not promise, by the terms of this agreement, to file
a Section 5K1.1, 18 U.S.C. § 3553(e) or Rule 35 motion." See United States v.
Romsey, 975 F.2d 556, 557–58 (8th Cir. 1992) (noting that a "carefully-worded plea
agreement" providing that "[t]he United States may, but shall not be required to, make
a motion requesting the court to depart from the sentencing range called for by the
guidelines" preserved the government's discretion).
Even if bad faith is a basis for challenging the government's refusal to make a
downward departure, see Perez, 526 F.3d at 1138, Conway has not made a substantial
threshold showing that the government acted in bad faith. "'[G]eneralized allegations
of improper motive'" for the government not filing a substantial-assistance motion do
"'not entitle a defendant to a remedy.'" Holbdy, 489 F.3d at 913 (quoting Wade v.
United States, 504 U.S. 181, 186 (1992)). Conway has presented "no evidence which
goes beyond his general allegations of improper motive [and bad faith] to establish
the threshold showing." See id. (quotation and citation omitted). Instead, he only
generally alleges that "[t]he government simply never talked to Conway" and
concludes that "[t]he government has impermissibly evaded its obligation by not
assessing Conway's cooperation." We additionally note that at the hearing on
Conway's motion to withdraw his guilty pleas, Conway claimed that the government
6

"There is an intra-circuit split whether bad faith is an additional basis for
compelling a motion for downward departure based on substantial assistance." United
States v. Perez, 526 F.3d 1135, 1138 (8th Cir. 2008) (citing United States v. Holbdy,
489 F.3d 910, 913 n.2 (8th Cir. 2007)).
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"did not honor the [§] 5(k)(1)" paragraph of the plea agreement; nonetheless, Conway
never requested that the district court question the government as to why it did not
file a substantial-assistance motion. See Pamperin, 456 F.3d at 825. Thus, the
government was not put on notice of the need to explain why it did not make a
§ 5K1.1 motion. See id. Therefore, we hold that the district court did not err in
denying Conway's motion to withdraw his guilty pleas based on the government's
purported breach of the plea agreement.
B. Johnson
Johnson argues that the district court abused its discretion in denying his
motion to withdraw his guilty pleas because he presented fair and just reasons for the
withdrawal. First, he contends that he is legally innocent of Count 8—using, carrying,
and possessing a firearm in furtherance of a drug trafficking crime. Second, he asserts
that his plea was involuntary.
1. Legal Innocence
Johnson admits his guilt as to Count 6—using, carrying, and possessing a
firearm in furtherance of a crime of violence, that is robbery involving a controlled
substance. But he asserts that he is actually innocent of Count 8, which alleged that
he possessed a firearm in furtherance of a drug trafficking crime. Johnson claims
innocence because authorities apprehended him before he could sell any drugs.
A "mere assertion of innocence, absent a substantial supporting record, will not
be sufficient to overturn a denial of a motion to withdraw." United States v. Ludwig,
972 F.2d 948, 951 (8th Cir. 1992) (quotation, alteration, and citation omitted).
Furthermore, a defendant's "claims of innocence are unavailing [where the defendant]
admi[ts] to the contrary in the plea agreement and stipulation, and at the change-ofplea hearing." United States v. Peebles, 80 F.3d 278, 279 (8th Cir. 1996) (per curiam).
As a result, "[a]n assertion of innocence—even a swift change of heart after the

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plea—does not constitute a fair and just reason to grant withdrawal." United States
v. Alvarado, 615 F.3d 916, 922 (8th Cir. 2010) (quotations and citation omitted).
Although Johnson asserts that he is innocent of Count 8 because he was
apprehended before any drugs were trafficked, the record does not support Johnson's
conclusory assertion of innocence. Johnson agreed in his plea agreement—and
confirmed at the plea hearing—that
[b]ased on the quantity of controlled substances that were taken in the
robbery and other evidence, the government could prove that the
defendant and other individuals involved with the defendant in the
robbery intended to distribute these controlled substances and that a
firearm was used and carried during and in relation to this Drug
Trafficking offense.
Johnson also agreed that "[t]he replacement cost of the drugs taken from the
pharmacy was well in excess of five hundred dollars." "[P]ossession with intent to
distribute" is a "drug trafficking crime." United States v. Bell, 477 F.3d 607, 616 (8th
Cir. 2007). We agree with the government that "the fact that Johnson was caught
before any of the prescription medications were distributed is irrelevant" because he
admitted in his plea agreement "that he possessed a large quantity of drugs [with the
intent to distribute them] and used a firearm in furtherance of that crime."
2. Voluntariness of Plea
According to Johnson, although he filed a notice of intent to plead guilty to
Count 5—robbery involving a controlled substance—and Count 6—using, carrying,
and possessing a firearm in furtherance of a crime of violence, that is robbery
involving a controlled substance—he "was advised by court personnel that the
[district] court would not . . . allow[ ] him to plead to these two counts." As a result,
he was placed in the "precarious position" of "[e]ither . . . proceed[ing] to trial on all
counts, or plead[ing] to whatever the government desired." He concludes that "the
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fact that [he] was not allowed to plead, as intended, [to Counts 5 and 6] draws into
serious question the voluntariness of his plea." He maintains that he "reluctantly
decided to accept the [g]overment[']s last minute offer [for him] to plead [guilty] to
[the] two [§] 924(c) charges" in Counts 6 and 8 after learning that a codefendant was
going to testify against him at trial.
"We review de novo whether the plea was knowing and voluntary; we review
the court's decision to deny the motion to withdraw for abuse of discretion." United
States v. Goodson, 569 F.3d 379, 382 (8th Cir. 2009). "Where the district court fully
informs a defendant of the rights he is waiving, and the defendant's statements at the
plea hearing show that he knowingly and voluntarily pleaded guilty, the occasion for
setting aside a guilty plea should seldom arise." United States v. Jones, 111 F.3d 597,
602 (8th Cir. 1997) (quotations and citations omitted). We have previously rejected
a defendant's claim that his plea was not voluntary where "[t]he district court inquired
fully into [the defendant's] state of mind at the time of the change[-]of[-]plea hearing,
whether he had adequately reviewed and considered the plea agreement, and whether
he understood the plea agreement and the consequences of pleading guilty." United
States v. Austin, 413 F.3d 856, 858 (8th Cir. 2005) (per curiam). A defendant's
"solemn declarations in open court" that he is "competent and capable" and "was
knowingly and intelligently waiving his rights" "carry a strong presumption of verity.
[A defendant's] self-serving, post-plea claims that he was unable to voluntarily choose
to plead guilty fly directly in the face of his own plea hearing testimony before the
district court." United States v. Andolini, 705 F.3d 335, 339 (8th Cir. 2013) (block
quotation and citation omitted).
Here, at the change-of-plea hearing, Johnson testified under oath that he
understood the plea agreement, was not forced to plead guilty, and was pleading
guilty of his own free will. The district court found Johnson's pleas were voluntarily
given. Johnson's claim that the district court would accept all-or-nothing as part of a
plea deal is not supported by the record. The district court explained to Johnson at the
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hearing that it does not get involved in plea negotiations. Therefore, we hold that
Johnson voluntarily and knowingly entered his guilty pleas and that his "complaints
do not present a fair and just reason for withdrawing his plea[s]." See id. The district
court did not abuse its discretion in denying Johnson's motion to withdraw his guilty
pleas.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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