UNITED STATES of America, Plaintiff-Appellee v. Demont Menasco HERROD, Defendant-Appellant.
No. 13-40703.
United States Court of Appeals, Fifth Circuit.
Feb. 19, 2015.
599 Fed. Appx. 402
Margaret Loraine Schmucker, Cedar Park, TX, for Defendant-Appellant.
Before KING, DAVIS, and OWEN, Circuit Judges.
Defendant-Appellant Demont Menasco Herrod pleaded guilty to several drug-related crimes and was sentenced to a term of imprisonment of 175 months. After his guilty plea, but prior to sentencing, Herrod moved: (1) to dismiss his counsel and proceed pro se, and (2) to withdraw his guilty plea. Both motions were referred to a magistrate judge who, after conducting a hearing, recommended that the district court grant Herrod‘s motion to proceed pro se and deny his motion to withdraw the guilty plea. The district court adopted the recommendation. On appeal, Herrod challenges the district court‘s ruling as to both motions. For the following reasons, we AFFIRM the judgment of the district court.
On September 15, 2011, a federal grand jury returned an indictment charging Defendant-Appellant Demont Menasco Herrod on two counts: (1) a violation of
On June 21, 2012, pursuant to a written plea agreement, Herrod waived his right to a jury trial and entered a plea of guilty to Count One insofar as it charged him with conspiracy to distribute and possess with the intent to distribute 1,000 kilograms or more of marijuana. With the consent of the parties, the plea hearing took place before the magistrate judge (“MJ“). The MJ advised Herrod of the nature of the charges against him, as well as the maximum possible penalties and mandatory minimum sentence he faced. The MJ then issued findings of fact and a recommendation that the district court accept Herrod‘s guilty plea. On June 28, 2012, the district court adopted the recommendation and found Herrod guilty. Under the plea agreement, Herrod waived the right to appeal his conviction and sentence except for “(a) any punishment imposed in excess of the statutory maximum, and (b) a claim of ineffective assistance of counsel that affects the validity of the waiver or the plea itself.”2 On December 13, 2012, the probation department prepared a presentence report (“PSR“), which recommended a term of imprisonment of 315 months. Herrod, through his attorney, filed various objections to the PSR.
On March 25, 2013—prior to the sentencing hearing, but nine months after his guilty plea—Herrod filed a pro se motion to dismiss his counsel, seeking to exercise his right to proceed pro se. In the same motion, Herrod also moved to withdraw his guilty plea pursuant to
I—I‘m required, first of all, to tell you that—of course, you have a right to represent yourself. You‘ve done your own research on that. You know that. But I‘m required to—if you‘ve done that much research, you know that courts also require that a judge go over with you that there can be problems with self-representation. You know, you‘re not a lawyer. You may be a smart guy and, for all I know, a very smart guy, but the law is a different area and there can be certain legal obstacles, legal hurdles that you may encounter that would be detrimental to your case and would be advisable to have a lawyer. Now, do you understand that?
Herrod responded that he did understand, noting: “I would like for the Court to give me an investigator and time to go to the law library, things that I need to help me fight the government.” The MJ informed Herrod that he would “have to address these issues as we go along” and stated that Herrod does not “have a right to have an investigator.” The MJ further stated: “I would appoint a lawyer for you, but you also have a right to represent yourself.” Herrod responded: “Yeah, I‘d rather represent myself for right now. I‘m in the process of looking for another attorney.” The MJ then stated:
Okay. You can represent yourself. I‘m just establishing on the record that there are—that it‘s dangerous. I use as an example all the time what Abraham Lincoln said: “He who represents himself has a fool for a client.” I mean, you hear that from the first day of law school. I wouldn‘t even represent myself in a case, even in a minor civil case. You get too caught up in the emotions and sometimes you lose sight of what‘s real. But, anyway, I‘m making that point to you. So, it‘s your decision, though, to knowingly and voluntarily at this time to waive your right to counsel. Yes?
Herrod responded in the affirmative.
Herrod refused to participate in the portion of the hearing relating to his motion to withdraw his guilty plea, as he “want[ed] to have a district judge in front of” him. Therefore, the MJ discussed the motion with the Government‘s counsel while Herrod remained silent. Following the hearing, the MJ issued a report and recommendation that Herrod‘s counsel be permitted to withdraw, that Herrod‘s request to proceed pro se be granted, and that Herrod‘s request to withdraw his guilty plea be denied. Herrod timely objected to the MJ‘s report and recommendation. He also filed a variety of other motions, including: several motions to dismiss, a motion to quash, a motion for a hearing, and a motion for a bill of particulars. The probation department prepared a revised PSR on May 13, 2013, to which Herrod filed pro se objections. On June 14, 2013, the district court adopted the report and recommendation of the MJ, granting Herrod‘s motion to proceed pro se and denying his motion to withdraw his guilty plea.5 After conducting a sentencing hearing (at which Herrod appeared pro se), the court sentenced Herrod to a below-guidelines term of imprisonment of 175 months, five years of supervised release, and a $100 special assessment. Pursuant to the plea agreement, the Government moved to dismiss Count 3 of the indictment; the district court granted the motion. Herrod then filed a motion for reconsideration, which the court denied. Herrod timely appeals.
A criminal defendant has a Sixth Amendment right to represent himself, “but only when he knowingly and intelligently chooses to do so.” United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). A defendant‘s claim that he did not knowingly and intelligently waive the right to counsel is reviewed de novo. United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003).
“A defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and just reason for requesting the withdrawal.”
III. Discussion
A. Motion to Proceed Pro Se
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that although the Sixth Amendment entitles a criminal defendant to forgo counsel and represent himself, “the accused must knowingly and intelligently forgo th[e] relinquished benefits [of counsel].” Id. at 835 (internal quotation marks omitted). The Court stated: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Id. (internal quotation marks omitted).
Accordingly, we have held that in order to ensure that the waiver of counsel is knowingly and intelligently made, the district court must consider various factors, including “the defendant‘s age and education, and other background, experience, and conduct.” United States v. Davis, 269 F.3d 514, 518 (5th Cir. 2001) (internal quotation marks omitted). The court must also “ensure that the waiver is not the result of coercion or mistreatment of the defendant, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.” Id. (internal quotation marks and footnote omitted). However, this circuit “require[s] no sacrosanct litany for warning defendants against waiving the right to counsel.” Id. at 519. Rather, “[d]epending on the circumstances of the individual case, the district court must exercise its discretion in determining the precise nature of the warning.” Id.; see also United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (“Because of the vast differences from case to case, and defendant to defendant, a district court must consider the totality-of-circumstances in determining whether a defendant has properly waived his right to counsel.“)6.
Herrod contends that the MJ failed to adequately advise him of the dangers and disadvantages of proceeding pro se.7 The MJ made the following statements to Herrod during the hearing:
“[T]here can be problems with self-representation.” - “You know, you‘re not a lawyer. You may be a smart guy and, for all I know, a very smart guy, but the law is a different area and there can be certain legal obstacles, legal hurdles that you may encounter that would be detrimental to your case and would be advisable to have a lawyer.”
- “I‘m just establishing on the record that there are—that it‘s dangerous.”
- “I would appoint a lawyer for you, but you also have a right to represent yourself.”
- “I use as an example all the time what Abraham Lincoln said: ‘He who represents himself has a fool for a client.’ I mean, you hear that from the first day of law school. I wouldn‘t even represent myself in a case, even in a minor civil case. You get too caught up in the emotions and sometimes you lose sight of what‘s real.”
Although this relatively sparse colloquy is considerably less than ideal, we conclude that it is not constitutionally defective under the particular circumstances of this case.
As we have repeatedly stated, district courts need not “follow a script” while conducting Faretta hearings, as “[t]his court requires no sacrosanct litany for warning defendants against waiving the right to counsel.” Jones, 421 F.3d at 363 (internal quotation marks and brackets omitted); see also Davis, 269 F.3d at 519; Virgil, 444 F.3d at 453. The colloquy here is comparable to the colloquy we approved of in Joseph:
After expressing a desire to proceed pro se, the court explained to Joseph the disadvantages of self-representation. The court provided: “I seriously recommend to you that you allow Mr. Chaney and his assistant to represent you . . . because they are very good lawyers.” After informing Joseph that Mr. Chaney would remain as stand-by counsel, the court reiterated its warning: “It is my strong recommendation to you that you allow Mr. Chaney to do the questioning, that you allow him to do the cross-examination, and that you allow him to put on evidence if there is any evidence on your behalf.” After explaining that Joseph had shown no good cause for the appointment of a different defense counsel, the district court urged once again, “I am discouraging you from representing yourself.” Despite these warnings, Joseph proceeded pro se.
Joseph, 333 F.3d at 590 (internal brackets omitted) (affirming the district court‘s decision to allow the defendant to proceed pro se). Here, the MJ similarly recommended that Herrod proceed with counsel, repeatedly warning Herrod that he would face “legal obstacles” and other problems that could be “detrimental” to his case. Cf. United States v. Fulton, 131 Fed.Appx. 441, 442-43 (5th Cir. 2005) (unpublished) (determining that colloquy was sufficient where the district court “warned [the defendant] that his case was ‘complex,’ that it would involve ‘complex issues’ regarding wiretap evidence, that it was in [the defendant]‘s ‘best interest’ to continue with appointed counsel, and that he would have a ‘daunting task’ if he proceeded pro se at trial, where he would be faced with a ‘very capable prosecutor’ “).
Other factors particular to this case support affirming the district court‘s decision to allow Herrod to proceed pro se. First, Herrod has a lengthy criminal history—as evidenced in his PSR—including over a dozen criminal convictions. Although the present case appears to have been Herrod‘s first experience in federal court, there can be little doubt that Herrod‘s substantial experience with the criminal justice system apprised him of the role of an attorney, what an attorney adds to the process. See Davis, 269 F.3d at 518 (stating that the defendant‘s background and experience are factors relevant to Faretta inquiry); Greene v. United States, 880 F.2d 1299, 1304 (11th Cir. 1989) (concluding that the defendant‘s “substantial experience with the criminal justice system . . . weighs in favor of a finding of effective waiver“). Herrod also recognized in his motion to proceed pro se that doing so could ultimately be “to his own detriment.” (quoting Faretta, 422 U.S. at 834). Moreover, Herrod‘s repeated insistence on proceeding pro se—as evidenced in his motion and in the hearing transcript—supports the conclusion that his waiver of counsel was knowingly and voluntarily made. See United States v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986) (finding waiver knowing and voluntary where proceeding pro se “was [the defendant‘s] apparent and stated intent before arraignment” and where “[i]t was his obvious intent before trial“). Although Herrod briefly stated during the Faretta hearing that he was “in the process of looking for another attorney,” he declined the MJ‘s offer to have another attorney appointed for him. Indeed, Herrod had already gone through two attorneys during his case. It appears that Herrod, who was determined to file various (apparently frivolous) motions he had prepared, realized that the only way to accomplish this end was to proceed pro se and file the motions himself.
B. Motion to Withdraw Guilty Plea
In determining whether the district court abused its discretion by denying a motion to withdraw a guilty plea, this court considers the following seven factors:
(1) whether [the defendant] asserted his innocence; (2) whether the Government would suffer prejudice if the withdrawal motion was granted; (3) whether [the defendant] delayed in filing his withdrawal motion; (4) whether the withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to [the defendant]; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.
United States v. McKnight, 570 F.3d 641, 645-46 (5th Cir. 2009) (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)). These “Carr” factors “are considered for the totality of the circumstances, and the district court is not required to make a finding as to each individual factor.” Id. at 646. “[T]he defendant has the burden of proving the withdrawal is justified” and “the trial court‘s decision regarding a withdrawal motion must be accorded broad discretion.” Carr, 740 F.2d at 344 (internal quotation marks omitted). Applying the above factors to the facts of this case, we conclude that the district court did not abuse its discretion by denying Herrod‘s motion to withdraw.
Although Herrod asserted his innocence when filing his motion to withdraw his guilty plea, we accord this factor little weight under the circumstances. First, an assertion of innocence “alone is far from being sufficient to overturn denial of a withdrawal motion.” Id. This is especially so where innocence is asserted “without further explanation.” McKnight, 570 F.3d at 649; see also United States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991) (“[T]he mere assertion of innocence, absent a substantial supporting record will not be sufficient to overturn a denial of a motion to withdraw.“). In his motion to withdraw his plea, Herrod failed to offer any facts in support of his claimed innocence, but rather appeared to object only to the PSR‘s calculation of his recommended sentence. Indeed, it is clear from the record that it was the unexpected length of the PSR‘s proposed sentence—not any revelation with respect to his guilt or innocence—that prompted Herrod to move to withdraw his plea. Cf. United States v. Rosales, 281 Fed.Appx. 424, 425 (5th Cir. 2008) (unpublished) (stating that defendant “did not assert his innocence” where he “merely objected to the quantity of drugs attributed to him for sentencing purposes“). Furthermore, Herrod acknowledged his guilt on the record at his guilty plea hearing, and through a signed factual statement—in which he admitted the facts underlying his offense. “[S]olemn declarations in open court carry a strong presumption of verity.” McKnight, 570 F.3d at 649 (internal quotation marks omitted); see also Clark, 931 F.2d at 294 (“Though Clark claims he has asserted his innocence throughout the government‘s investigation, he did plead guilty under oath to a federal district judge.“). Because Herrod did not assert his innocence until he filed the motion to withdraw his plea, this factor deserves little weight, as “[g]uilt or innocence appears merely to be an issue of expedience for [Herrod].” United States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994).
The third factor—Herrod‘s delay in filing his motion to withdraw—weighs heavily in favor of the Government. Herrod filed the motion more than nine months after pleading guilty. In previous cases, we have determined that substantially shorter delays weigh in favor of affirming the denial of a motion to withdraw. See Thomas, 13 F.3d at 153 (stating that “the six-week delay between entry of the plea and the motion to withdraw is significant“); United States v. Rinard, 956 F.2d 85, 88-89 (5th Cir. 1992) (finding that, “given the 69-day delay between [the defendant]‘s plea and his verbal motion to withdraw the plea,” among other factors, “the district court did not abuse its discretion in denying [the defendant]‘s verbal motion to withdraw his guilty plea“); United States v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988) (holding that delay weighed in favor of affirming denial of motion where the defendant “first moved for withdrawal at sentencing, seven weeks after pleading guilty“); Carr, 740 F.2d at 345 (stating that a motion to withdraw “was not promptly filed” where “[t]he defendant waited twenty-two days [after pleading guilty] before filing his motion“). Herrod argues that he did not delay in filing the motion, but rather filed it as quickly as possible after learning of the PSR‘s recommended sentence. However, as this court has stated:
The rationale for allowing a defendant to withdraw a guilty plea is to permit him to undo a plea that was unknowingly made at the time it was entered. The purpose is not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty.
Carr, 740 F.2d at 345. The fact that the PSR‘s recommended sentence prompted Herrod to move to withdraw his plea suggests that he was making a tactical decision—not that his plea was unknowingly made. See Hurtado, 846 F.2d at 997 (rejecting argument that delay was justified because the defendant “had been thinking and meditating [about] how [his] attorney influenced [him]” (internal quotation marks omitted)); Thomas, 13 F.3d at 153 (“[The defendant]‘s explanation that his plea resulted from bad advice and pressure from his attorney would carry more weight had his withdrawal been prompt.“). This is not a case in which, for example, Herrod had “communicated doubts regarding the guilty plea” soon after he pleaded guilty. McKnight, 570 F.3d at 650.8 Thus, Herrod‘s substantial delay in filing the motion to withdraw his plea weighs heavily in the Government‘s favor.
Herrod argues that the fifth Carr factor weighs in his favor, as he did not receive the close assistance of counsel in relation to his plea. Herrod contends that his attorney: (1) “lied to [him] and misled [him]“; (2) provided him with an estimated sentence that was “wildly off the mark“; and (3) failed to explain to him the differences between the state and federal criminal justice systems. Despite these allegations, we conclude that Herrod was afforded close assistance of counsel throughout his plea. Here, Herrod‘s attorney—privately retained counsel he had chosen—negotiated a plea agreement on his behalf. See McKnight, 570 F.3d at 646-47 (discussing prior cases and noting that the fact that counsel “negotiated a plea agreement” weighs in favor of finding close assistance of counsel). Importantly, at his plea hearing, Herrod stated that he was satisfied with the assistance of his counsel. See United States v. Rodriguez, 306 Fed.Appx. 135, 138 (5th Cir. 2009) (unpublished) (finding no abuse of discretion in denial of motion to withdraw, noting that the defendant “indicated that he was satisfied with the representation of counsel during his plea colloquy“); United States v. Morris, 85 Fed.Appx. 373, 374 (5th Cir. 2003) (unpublished) (“There is no support in the record for [the defendant‘s] assertion that he did not have close assistance of counsel. [The defendant] stated at the guilty plea hearing that he was satisfied with his counsel‘s representation and that his counsel had discussed his entire case with him.“). Herrod also confirmed in writing that he was “fully satisfied with defense counsel‘s legal representation,” and that he “received satisfactory explanations from defense counsel concerning each paragraph of [the] plea agreement, each of [his] rights affected thereby, and the alternatives to entering a guilty plea.” Moreover, even if Herrod‘s counsel misadvised him regarding his likely sentence, this does not preclude a finding of close assistance of counsel. See McKnight, 570 F.3d at 647-48; see also United States v. Mendez, 447 Fed.Appx. 577, 579 (5th Cir. 2011) (unpublished) (“[The defendant‘s] claim that counsel misadvised him regarding the Sentencing Guidelines is insufficient to show that he did not receive close assistance.“); Rosales, 281 Fed.Appx. at 425 (“[A]lthough [the defendant] demonstrated that counsel‘s opinion as to his potential sentence proved to be incorrect, he has not shown that he was deprived of counsel‘s close assistance.“). Therefore, this factor too weighs in the Government‘s favor.
Accordingly, based on the totality of the circumstances, we cannot say that the district court abused its discretion when it denied Herrod‘s motion to withdraw his guilty plea. The vast majority of the factors—most significant, Herrod‘s delay in filing the motion—weigh strongly in the Government‘s favor. Given the deference this court must accord to the district court‘s decision, and given that Herrod bears the burden to establish that withdrawal is justified, Carr, 740 F.2d at 344, we conclude that the district court did not err in denying Herrod‘s motion to withdraw his plea.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.