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    United States v. Alvin Mansker, 5 F.3d 548, 10th Cir. (1993)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a criminal case. The order affirms the district court's denial of the defendant's motion to withdraw his guilty plea and the court's finding that the government did not breach the plea agreement. Specifically, the appellate court found that the defendant failed to provide adequate support for withdrawing his plea four months after entering it. The court also found insufficient evidence that the defendant provided substantial assistance to the government as required by the plea agreement. Therefore, the appellate court upheld both rulings of the district court.

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    United States v. Alvin Mansker, 5 F.3d 548, 10th Cir. (1993)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a criminal case. The order affirms the district court's denial of the defendant's motion to withdraw his guilty plea and the court's finding that the government did not breach the plea agreement. Specifically, the appellate court found that the defendant failed to provide adequate support for withdrawing his plea four months after entering it. The court also found insufficient evidence that the defendant provided substantial assistance to the government as required by the plea agreement. Therefore, the appellate court upheld both rulings of the district court.

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    Filed: 1993-08-16 Precedential Status: Precedential Citations: 5 F.3d 548 Docket: 93-5022

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a criminal case. The order affirms the district court's denial of the defendant's motion to withdraw his guilty plea and the court's finding that the government did not breach the plea agreement. Specifically, the appellate court found that the defendant failed to provide adequate support for withdrawing his plea four months after entering it. The court also found insufficient evidence that the defendant provided substantial assistance to the government as required by the plea agreement. Therefore, the appellate court upheld both rulings of the district court.

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    36 views3 pages

    United States v. Alvin Mansker, 5 F.3d 548, 10th Cir. (1993)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding a criminal case. The order affirms the district court's denial of the defendant's motion to withdraw his guilty plea and the court's finding that the government did not breach the plea agreement. Specifically, the appellate court found that the defendant failed to provide adequate support for withdrawing his plea four months after entering it. The court also found insufficient evidence that the defendant provided substantial assistance to the government as required by the plea agreement. Therefore, the appellate court upheld both rulings of the district court.

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    of 3

    5 F.

    3d 548
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Alvin MANSKER, Defendant-Appellant.
    No. 93-5022.

    United States Court of Appeals, Tenth Circuit.


    Aug. 16, 1993.

    Before LOGAN, MOORE and BRORBY, Circuit Judges.


    ORDER AND JUDGMENT*
    LOGAN, Circuit Judge.

    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties' requests for a decision on the briefs without
    oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore
    ordered submitted without oral argument.

    Defendant Alvin Mansker was indicted on a single count of conspiracy to


    manufacture cocaine and possession with intent to distribute cocaine, in
    violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(A)(iii), and 846. He entered into a
    plea agreement which the district court accepted at a change of plea hearing.
    Fed.R.Crim.P. 11. Some four months later, after preparation of the presentence
    report but before sentencing, defendant filed a motion to withdraw his guilty
    plea, alleging that he had pleaded guilty solely upon the advice of his attorney
    and that he had a defense to the indictment. Fed.R.Crim.P. 32(d). After a
    hearing, the district court denied the motion. Defendant was sentenced to a term
    of 121 months, followed by five years of supervised release.

    Defendant raises two issues in this direct criminal appeal: (1) that the district
    court abused its discretion in refusing to permit him to withdraw his guilty plea;
    and (2) that the government breached the plea agreement in not recommending
    a downward departure in sentencing for substantial assistance. 18 U.S.C. Sec.
    3553(e); U.S.S.G. Sec. 5K1.1.

    We review a district court's denial of a motion to withdraw a guilty plea for


    abuse of discretion. United States v. Elias, 937 F.2d 1514, 1520 (10th
    Cir.1991). Rule 32(d)1 of the Federal Rules of Criminal Procedure allows a
    defendant to withdraw a guilty plea "upon a showing by the defendant of any
    fair and just reason." The burden lies with the defendant to meet this standard.
    A defendant has no automatic entitlement to withdraw a guilty plea. Barker v.
    United States, 579 F.2d 1219, 1223 (10th Cir.1978). Among the reasons this
    court acknowledges as justifying withdrawal of a guilty plea are: "(1) whether
    the defendant has asserted his innocence; (2) prejudice to the government; (3)
    delay in filing defendant's motion and, if so, the reason for the delay; (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. Elias, 937 F.2d at 1520.

    We agree with the district court that defendant has not established any "fair and
    just reason" to withdraw his guilty plea. He testified at his Rule 32(d) hearing
    that he had not wanted to plead guilty but that he had read and understood the
    plea agreement before signing. He asserted that he had lied to the district court
    at the Rule 11 hearing, and had falsely stated that he had not been promised
    probation by his attorney in exchange for his guilty plea. The attorney who
    represented defendant at the Rule 11 hearing denied that he had promised
    defendant probation in exchange for a guilty plea; and the district court believed
    the attorney would not have given such advice knowing the crime carried a
    statutory minimum ten year term. More important, defendant filed his Rule
    32(d) motion approximately four months after his plea had been accepted and
    after a codefendant, who was to be a key government witness against him, was
    murdered. Under these circumstances, we agree with the analysis of the district
    court that defendant offered inadequate support for his Rule 32(d) motion. It
    was not an abuse of discretion by the district court to deny defendant's motion.

    We also reject defendant's second allegation of error, that the government


    breached the terms of the plea agreement. After reviewing the transcript
    excerpts from defendant's Rule 11 and Rule 32(d) hearings, there is insufficient
    evidence that defendant provided "substantial assistance" to warrant a finding
    of a breach of the plea agreement when the government refused to make a

    U.S.S.G. Sec. 5K1.1 motion. Defendant acknowledged at his Rule 11 hearing


    that a Sec. 5K1.1 motion was dependant upon a recommendation by the
    government, but would not be binding upon the district court. The plea
    agreement defines what the government considered to be cooperation, and the
    evidence was clear that defendant did not meet this standard.
    7

    AFFIRMED.

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrine of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

    Defense counsel mistakenly argues that Fed.R.Crim.P. 36 governs withdrawal


    of guilty pleas

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