Defendant-Appellant Todd Isom (“Isom”) appeals the district court’s denial of his request to withdraw his plea of guilty. For the reasons stated herein, we affirm.
BACKGROUND
In November 1992, Isom, along with co-defendant Anthony McKinney (“McKinney”), was indicted on two counts. Count I charged the two men with conspiracy to distribute and to possess with intent to distribute five grams or more of cocaine base. See 21 U.S.C. § 846. Count II charged them with possession with intent to distribute five grams or more of cocaine base. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The testimony at the probable cause and change of plea hearings indicates that the circumstances of arrest were as follows. On October 26, 1993, a confidential informant, accompanied by several Drug Enforcement Administration Task Force Agents, taped two telephone conversations *833 with McKinney. McKinney agreed to meet the informant in Providence and sell him two ounces of crack cocaine. The rendezvous took place as planned. McKinney joined the informant and an agent in an undercover vehicle. When the agent asked to see the drugs before allowing McKinney to count the money, McKinney said that “his guy” was coming with the “stuff’ and directed the agent to a nearby parking lot. McKinney then got out of the ear and flagged Isom, who took a clear plastic bag out of his pants and gave it to McKinney. After McKinney showed the agent some of the contents of the bag, the agent gave the arrest signal. Both co-defendants fled, and were subsequently apprehended. After receiving their Miranda warnings, both defendants made statements admitting possession of the crack cocaine.
At his arraignment, Isom pled not guilty. On January 14, 1994, at his change of plea hearing, the district court accepted Isom’s 1 change of plea to guilty on both counts, pursuant to a plea agreement, which provided, inter alia, that Isom would plea guilty and the government would recommend a sentence at the low end of the sentencing guideline range or of five years, whichever was greater.
At the March 18,1994, sentencing hearing, however, defense counsel indicated to the court that Isom had informed him that he did not understand the change of plea, the attendant colloquy, or even the plea agreement. Isom then addressed the court and made a pro se motion to withdraw his plea. Isom began his motion by stating that he did not want to withdraw his plea:
MR. ISOM: Good morning. I just want to start off, your Honor, by saying I’m not trying to change the plea that I entered the day that I said that I was guilty of taking a bag from my co-defendant. Also I want to make a statement clearly that I also received it from my co-defendant to bring it down there, okay.
Immediately following these statements, however, Isom presented his reasons to withdraw his plea: his lack of understanding of the plea agreement and ineffective assistance of counsel.
I feel like this, I came in here to this courtroom January 14th to plead under that, but I did not understand the plea agreement, and did not see the plea agreement until that day, until that morning, five minutes before I entered the courtroom. My lawyer states that he went over it with me. I don’t have copies of nothing, your Honor, anything, not even discovery package, nothing. I don’t have nothing. He claims he came, he discussed this. He claims why I didn’t want copies of them. I don’t understand that, your Honor. I feel like this, if he was — if I was supposed to have copies of them, I should have had copies of them. I just feel — I put in a motion to withdraw the plea.
Isom concluded by pleading his innocence.
I just taking — taking into consideration and ask you, to beg you, to beg the Court, that you take into consideration and look at the motion, and I’ll go with your decision, whatever you decide to grant, whatever you decide your go under, but I really feel as I should have a chance to prove my innocence in this case here. I’m freely pleading out to something I didn’t even have nothing to do with. Just because I brung the bag down to him, with the knowledge of not knowing what was in it, doesn’t say that I was involved with a drug deal. I’m not a drug dealer, and I feel I just go from my heart that I should just let you look over the motion. Thank you.
(Sentencing Hearing, at 3^1). The court refused Isom’s motion:
THE COURT: Well, it comes too late, to begin with. I took your plea here in open court, and I asked you all the questions, and you made all the right answers—
MR. ISOM: Yup.
THE COURT: (Continued) — to plead in this matter.
MR. ISOM: Yes.
THE COURT: And you told me you understood the plea agreement.
MR. ISOM: Uh-hum.
*834 THE COURT: And what the Government’s recommendation was going to be. So I’m not going to allow you to pull out at this point.
MR. ISOM: Okay. No problem.
(Sentencing Hearing, at 4-5). Isom was sentenced to sixty months in prison, to be followed by four years of supervised release, and a $100 assessment.
Ten days following the sentencing hearing, a written motion to withdraw plea was filed. Isom’s signature on the motion, which was apparently prepared by a paralegal clerk at a detention center, was notarized on March 15, prior to the sentencing hearing. The written motion stated, inter alia, that the plea should be withdrawn as it was entered without the proper advice of counsel, and that Isom did not understand the nature of the charge, the consequences of the plea, or his rights in connection with the plea. In support of these contentions, the motion maintained that Isom was a functional illiterate, that he was innocent, and that the government would suffer no prejudice from withdrawal of Isom’s guilty plea. The reason presented for withdrawal was ineffective assistance of counsel. The court denied the motion, on the grounds that it was untimely and lacked substance. This appeal ensued.
DISCUSSION
The sole issue before us is whether the district court erred in denying Isom’s oral and written motions to withdraw his plea of guilty without an evidentiary hearing. After establishing our standard of review, we set out the legal framework and weigh the merits of Isom’s appeal. For the reasons discussed below, we affirm the district court.
A. Standard of Review
The timing of a motion determines our standard of review: we apply an abuse of discretion standard to pre-sentencing motions,
see United States v. Gray,
B. The Legal Framework
It is by now well established that a defendant does not have an absolute right to withdraw a guilty plea.
See Gray,
the most significant of which is whether the plea was knowing, voluntary and intelligent within the meaning of [Federal Rule of Criminal Procedure] 11. The other factors include: 1) the force and plausibility of the proffered reason; 2) the timing of the request; 3) whether the defendant has asserted his legal innocence; and 4) whether the parties had reached a plea agreement.
Cotal-Crespo,
C. Analysis
In essence, Isom claims that his assertions of ineffective assistance of counsel, a lack of understanding of the plea agreement, and his professed innocence constitute a fair and just reason sufficient that the district court erred in denying his motion to withdraw his change of plea. Having established our basic legal framework, we address each of the factors in detail.
1. The Rule 11 Colloquy
As noted above, our first consideration is whether the plea was knowing, voluntary and intelligent as understood in terms of Rule 11. “We have identified three ‘core concerns’ of Rule 11: 1) absence of coercion; 2) the defendant’s understanding of the charges; and 3) the defendant’s knowledge of the consequences of the guilty plea.”
Gray,
In determining whether there has been a core violation, we review the totality of the circumstances surrounding the Rule 11 hearing, rather than apply a “talismanic test.” What is critical is the substance of what was communicated by the trial court, and what should reasonably have been understood by the defendant, rather than the form of the communication.
Cotal-Crespo,
“It is axiomatic that the procedures followed by the district court in accepting a plea are crucial in later determining whether the plea was truly understanding and voluntary.” Ruiz-del Valle, 8 F.3d at 102. In the present case, the court conducted a comprehensive inquiry under Fed.R.Crim.P. 11. In response to the court’s questioning, Isom confirmed that he had a ninth-grade education and was not under the influence of any drug, medication, or alcoholic beverage. He agreed that he had received a copy of the indictment, had discussed it fully with his counsel, and that he was satisfied by his counsel’s representation and advice. The court instructed Isom to listen carefully as the Government set forth the essentials of the plea agreement; Isom agreed that the account corresponded to his understanding of the plea agreement, that he had signed it after a full discussion of it with his attorney, and that he had read it prior to signing it. He attested that there had been no other promises or assurances made him to induce him to plead guilty, and that there were no attempts to force him or coerce him into doing so. Isom further confirmed that he understood that he was charged with felony offenses, due to which he may be deprived of certain civil rights; that he understood the maximum penalties applicable and that the guidelines may not establish the same penalty; that he had discussed the guidelines with his attorney; and that he knew the judge would determine the applicable sentence after a presentence report. At the court’s questioning, Isom also agreed that he knew he had the right to a trial with or without a jury, as well as the rights incidental to a trial, such as the right to counsel. When the circumstances of his arrest, as described above, were recounted, the following colloquy ensued between the court and Isom:
Q Did you hear all that, Mr. Isom?
A Yes, I did.
*836 Q And are those the facts in your case?
A Somewhat. I did not pull anything from out of my pants, and I did not — it was in a plastic bag, in a napkin, and they did not flee the area, either.
Q I’m soriy, they did not what?
A I did not flee the area like they said, they chased me. I did not run nowhere.
Q But you delivered some crack cocaine?
A Yes, I did. Yes.
Q You admit to that?
A Yes, I do.
Q Is there anything else you want to add or subtract from what the prosecutor said?
A No. That’s all.
(Change of Plea Hearing, at 12). The court reiterated the charges against Isom, seeking his confirmation that he understood them and that he was prepared to plead guilty to them. Finally, finding that Isom’s plea of guilty was knowing and voluntary as well as supported by an independent basis in fact, the court accepted Isom’s change of plea.
In his motions and on appeal, Isom maintains that he did not understand either the plea agreement or the Rule 11 colloquy. However, he fails to point to any specific error or point of confusion. Our own examination of the record reveals no error. See Ruiz-del Valle, 8 F.3d at 102 (examining sua sponte compliance with Rule 11). The court directly addressed the three crucial aspects of the colloquy — whether Isom had been coerced, whether he understood the charges, and whether he understood the consequences of his plea. Nothing in the record indicates that he was coerced or did not understand the agreement or the colloquy. Rather, Isom’s statements are indicative of his understanding: he corrected the detailed account of the circumstances surrounding his arrest on three particular points, ultimately agreeing that he had in fact delivered crack. Further, when the court asked him whether he and his counsel had come to a ballpark figure of what the applicable sentencing guidelines would be, he stated:
A No I haven’t. Have I come to any agreement?
[DEFENSE COUNSEL]: No. Do you have a ballpark figure as to—
THE WITNESS: Five to forty.
Q You think you’re probably going to do five years in this case, Mr. Isom?
A No. It was five to forty, that’s all I understood what it was.
(Change of Plea Hearing, at 8). This colloquy indicates that Isom clearly understood the possible implications of his guilty plea. Indeed, defense counsel testified at the sentencing hearing that he had spent an hour and a half going over the plea agreement with Isom, and that Isom had refused to take any copies of the agreement or the presentence report.
At oral argument, appellant’s counsel argued that the fact that the colloquy consisted of leading questions, to which defendant merely had to answer “yes,” indicates somehow that it was insufficient: the court knew Isom’s reading skills were minimal,
2
and so it should have had Isom describe the agreement in his own words.
Cf. Cotal-Crespo,
2. Force and Plausibility of Proffered Reason
Isom must demonstrate a plausible reason for the withdrawal of his guilty plea. “In this context, plausibility must rest on more than the defendant’s second thoughts about some fact or point of law, or about the wisdom of his earlier decision.”
Parrilla-Tirado,
First, Isom claims his innocence. In his written motion, he alleges that he could produce wholly exculpatory evidence at trial, but does not specify its nature. Examining the record, we find that Isom’s eleventh-hour profession of innocence lacks merit, and thus does not rise to the level of a “fair and just reason” for withdrawal of his claim. In
United States v. Ramos,
That finding is equally true here. Indeed, Isom not only failed to maintain his innocence at the Rule 11 hearing, he clarified specific points regarding the events, agreeing immediately afterwards that he delivered crack cocaine. His claim of innocence in his oral motion followed his opening statement that he “received [a bag] from my co-defendant to bring it down there, okay.” (Sentencing Hearing, at 3). Appellant urges us to read this “obvious confusion” as highlighting his need to withdraw his plea so that he may gain a better understanding of the legal issues involved in his case. We decline the invitation, however, for we interpret Isom’s contradictory statements as the
Ramos
court did that defendant’s inconsistent claims of innocence, and find Isom’s assertion of innocence lacks merit.
Cf. Parrilla-Tirado,
Isom asserts a second “fair and just” reason: ineffective assistance of counsel. This court applies the
Strickland v. Washington,
Isom contends that the district court erred in not holding an evidentiary hearing on his ineffective assistance claim. As he points out, this court has refused to hear ineffective assistance claims for the first time on appeal where there is no record on which to rely. In such cases, we have held that such claims should be brought in collateral proceedings pursuant to 28 U.S.C. § 2255, where a record may be developed.
See, e.g., United States v. Carter,
Fairness to the parties and judicial economy both warrant that, absent extraordinary circumstances, an appellate court will not consider an ineffective assistance claim where no endeavor was first made to determine the claim at the district level.
Austin,
Rather than conclude that a collateral proceeding is appropriate in the present case, however, Isom argues that we should remand for a full evidentiary hearing on his claim. We remind him that evidentiary hearings are not an entitlement:
[E]videntiary hearings on motions are the exception, not the rule. We have repeatedly stated that, even in the criminal context, a defendant is not entitled as of right to an evidentiary hearing on a pretrial or posttrial motion. Thus, a party seeking an evidentiary hearing must carry a fairly heavy burden of demonstrating a need for special treatment.
United States v. McGill,
Isom’s request that we remand for an evidentiary hearing fails. Simply put, having considered the record of the hearings as well as the written motion, we find that the district court’s decision not to hold an evidentiary hearing does not constitute an abuse of its discretion.
See Ramos,
Isom makes the alternative argument that he presented enough information during his oral plea for us to be able to determine that he should be able to withdraw his plea as a result of ineffective assistance of counsel. This argument also fails. First, the ineffective assistance claim was made sketchily at best: Isom claimed he did not see the plea agreement until the morning, and that he did not have copies of any documents. His counsel, in turn, stated to the court that he had spent one and a half hours going over the three-page plea agreement, and that Isom had never asked for copies of anything, but had in fact refused copies. Isom does not contest these representations. We cannot say that the district court abused its discretion in denying the oral motion when Isom’s ineffective assistance claim was only briefly made, where there was testimony contradicting his assertions, where he had stated in his Rule 11 colloquy that he signed the agreement after a full discussion of it with his attorney, and where there was no evidence that Isom had not, in fact, understood the Rule 11 colloquy. Indeed, the district court specifically commended counsel for doing “an excellent job” for Isom, winning him the maximum guideline benefits in sentencing.
3. Timing of the Request
We
have repeatedly noted that the more a request is delayed — even if made before sentence is imposed — the more we will regard it with disfavor.
See, e.g., United States v. González-Vázquez,
Isom argues on appeal that the district court erred in stating that the oral motion was not timely. Indeed, as he points out, Fed.R.Crim.P. 32(e) allows a plea to be withdrawn any time prior to sentencing if defendant shows a fair and just reason. However, making a motion to withdraw a plea two months following a Rule 11 hearing “complies with the letter, but certainly not the spirit” of Rule 32(e).
Crosby,
Appellant’s next argument, namely, that given Isom’s difficulties with the written word, it was logical that he first raised his motion to withdraw orally at his first court appearance following the change of plea hearing, is inconsistent with his position that the written motion was actually made prior to sentencing. Indeed, Isom referred to the written motion in his oral motion.
4. Assertion of Innocence
An assertion of innocence weighs the balance in favor of withdrawal; the failure to do so does the opposite. See
Parrilla-Tirado,
5. Other Factors
Finally, we note that Isom did, indeed, have a plea agreement with the government, which was not breached.
“Since all the critical integers in the decisional calculus counsel affirmance, we need not embark upon an analysis of possible prejudice to the government.”
Doyle,
CONCLUSION
For the reasons discussed above, the district court’s refusal to grant Isom’s motion to withdraw his plea is affirmed.