(D.C. No. 2:10-CR-01070-TS-1) (D. Utah)
Before HOLMES, HOLLOWAY, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT [*]
William J. Holloway, Jr. Circuit Judge
Wayne Martin Gauger appeals his federal criminal convictions, arguing only that the district court erred in denying his motion to withdraw his guilty plea. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Among other counts, Mr. Gauger was charged with committing robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a) (Hobbs Act robbery) and using, carrying, brandishing, and discharging a firearm during a violent crime in violation of 18 U.S.C. § 924(c). He decided to plead guilty, but he suffers from certain mental illnesses, and his mental condition deteriorated just before his scheduled plea hearing in late June 2011. The hearing was postponed. About a month later, at a July 26 status conference, defense counsel represented to the court that Mr. Gauger's mental condition had improved due to a change of medications. Accordingly, the defense was prepared to proceed with the plea. At a plea hearing on August 8, the court accepted Mr. Gauger's plea of guilty to two Hobbs Act robbery counts and one firearms count.
Almost two months later, on October 4, Mr. Gauger filed a short pro se statement asking to withdraw the plea. At a hearing on November 29, he withdrew that request. But at sentencing on December 20, the court discovered that the week after the November 29 hearing, Mr. Gauger had mailed a second pro se statement, again asking to withdraw his plea, that the court had not received. The court postponed sentencing, and Mr. Gauger refiled his second request to withdraw on December 22. In this statement he explained that when he entered his plea he did not understand that the firearms count would carry a consecutive sentence. He also expressed dissatisfaction with his attorney, who, he asserted, had talked him out of pursuing the initial request to withdraw his plea.
The court appointed new counsel, who filed a formal motion to withdraw the plea on March 16, 2012. In this motion, Mr. Gauger asserted that he was legally innocent of the robberies and firearms charges. He also argued that the plea was not knowing and voluntary because his mental condition was not sufficiently stabilized by the time of the plea hearing. After hearing argument by counsel, the magistrate judge recommended that the district court deny the motion. Mr. Gauger objected. Conducting a de novo review of the points under objection, the district court denied the motion to withdraw the guilty plea.
After a plea is accepted but before sentencing, a defendant may withdraw his plea if he "can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). This court has identified seven factors to consider in determining whether a defendant has met his burden: "(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant's motion, (4) inconvenience to the court, (5) defendant's assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources." United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993).
"We review the denial of a Rule 11(d)(2)(B) motion for abuse of discretion, " United States v. Garcia, 577 F.3d 1271, 1274 (10th Cir. 2009), except that we review de novo the question of whether the plea was knowing and voluntary, see United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000). "Although a motion to withdraw a plea prior to sentencing should be freely allowed, we will not reverse a district court's decision unless the defendant can show that the court acted unjustly or unfairly." Garcia, 577 F.3d at 1274 (internal quotation marks omitted).
The district court concluded that only the second Gordon factor—prejudice to the government—weighed in Mr. Gauger's favor. On appeal, Mr. Gauger "acknowledges that he had competent counsel throughout the time preceding and during his change of plea and that this factor weighs against him, " Aplt. Br. at 15, but he argues that the district court misweighed the five remaining Gordon factors. We examine each disputed factor in turn.
Assertion of Innocence.
Mr. Gauger contends that he is legally innocent of the crimes because he lacked the requisite specific intent due to his mental condition and other factors. Given his assertion of a credible claim of legal innocence, he asserts, the district court erred in weighing this factor against him. See United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (stating that a credible claim of legal innocence may satisfy the assertion-of-innocence factor). He also objects to the ...