United States of America v. Kenneth Golden

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 02-2925
UNITED STATES OF AMERICA
v.
KENNETH GOLDEN,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00608-1)
District Judge: Hon. Franklin S. VanAntwerpen
Submitted Under Third Circuit LAR 34.1(a)
March 13, 2003
Before: SLOVITER, NYGAARD, and ALARC N*, Circuit Judges
(Filed: March 14, 2003)
OPINION OF THE COURT
* Hon. Arthur L. Alarc¢n, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation. SLOVITER, Circuit Judge.
Appellant Kenneth Golden appeals from the District Court’s order denying his
motion to withdraw his guilty plea. We will affirm.
I.
Because we write solely for the parties and not for publication, we need not set
forth a detailed recitation of the background for this appeal and will limit our discussion
to resolution of the issues presented. The facts are undisputed.
On September 1, 2000, Golden attempted to conduct a drug buy from an
undercover Pennsylvania State Police trooper. While Golden remained seated in his
vehicle, he provided $3,000 in cash in return for a quarter pound of cocaine. Golden was
arrested immediately and a loaded Colt .380 semi-automatic pistol was seized from the
driver’s seat area of the vehicle. Thereafter, Golden was indicted by a grand jury on
various counts of conspiracy to distribute cocaine, attempted possession with intent to
distribute cocaine, prostitution offenses and aiding and abetting in prostitution with the
use of an interstate facility.
On March 2, 2001, Golden entered a plea of guilty to all of the counts of the
superseding indictment, including Count Three, which charged Golden with possessing a
firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924
(c)(1). Thereafter, Golden replaced counsel who had represented him and, on June 8,
2001, with the assistance of new counsel, filed a motion to withdraw his guilty plea. The
District Court held an evidentiary hearing on the motion and on July 27, 2001 denied the

-- 1 of 3 --

motion. The court sentenced Golden on September 19, 2001 to 48 months imprisonment
on all counts except Count Three and 60 months imprisonment on Count Three to run
consecutive to the sentence on the other counts, a total of 108 months imprisonment. On
October 15, 2001, Golden appealed, limiting his appeal to Count Three.
II.
Withdrawal of a guilty plea is allowable where it is "fair and just." Kercheval v.
United States, 274 U.S. 220, 224 (1927). That determination entails consideration of
three factors: "(1) whether the defendant asserts his innocence; (2) whether the
government would be prejudiced by his withdrawal; and (3) the strength of the
defendant’s reasons to withdraw the plea." United States v. Jones, 979 F.2d 317, 318 (3d
Cir. 1992), superceded by statute on other grounds as stated in, United States v. Roberson,
194 F.3d 408, 417 (3d Cir. 1999).
In assessing the first factor, the District Court found that Golden failed to
adequately assert his innocence and that his assertion that he possessed the drugs only for
personal use of the cocaine was not credible. A defendant’s assertion of innocence that is
unsupported by the record will adversely affect defendant’s credibility. See Government
of Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir. 1980). The District Court found
that Golden’s claim that he is innocent of all the charges in the indictment, including
those counts he conceded, contributed to his lack of credibility. As the court stated in
United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001), "[b]ald assertions of
innocence, however, are insufficient to permit a defendant to withdraw her guilty plea."
The court then turned to the third prong of the Jones test, whether the Defendant
has "fair and just" reasons for seeking to withdraw his guilty plea. Golden argues
ineffective assistance of counsel, stating there was inadequate time spent with his counsel
to discuss possible defenses. The District Court rejected this contention and pointed to its
colloquy with Golden to show that Golden had an opportunity at his initial plea hearing to
question the assistance of his counsel and failed to do so. The court credited the
testimony of Golden’s counsel that he did discuss the full range of defenses with him.
The court also found Golden’s other claims of ineffective assistance of counsel were
without merit.
In evaluating this third prong, the District Court also considered the circumstances
surrounding Golden’s plea. Golden argues that his plea was entered into unknowingly
and unintelligently based on his unduly limited time with his counsel. Once again, the
District Court pointed out that these contentions are not corroborated by the record itself
and the District Court thus concluded that Golden’s reasons for seeking to withdraw his
guilty plea were not "fair and just." Supp. App. at 204.
Finally, the District Court turned to the second prong of the Jones test, i.e.,
whether the Government would be prejudiced by granting a withdrawal of the guilty plea.
Golden argues that the Government would not be, pointing out the fact that his motion to
withdraw was filed prior to sentencing and that the Government was not prejudiced by
loss of evidence. The Government replies that in reliance on Golden’s earlier plea, it
voided a separation letter and allowed Golden to speak to his wife, who had previously
agreed to testify against him. Now that Golden had access to a Government witness, he
would have had the opportunity to dissuade the witness from testifying or to alter her
testimony, which would constitute prejudice. See United States v. Smith, 1993 WL
276930, at *7 (E.D. Pa. July 21, 1993) (prejudice found where incentive of witness to
cooperate had been minimized).
We will affirm. In doing so, we reject Golden’s argument that the District Court
failed to adequately explain the essential elements of the offense of carrying a firearm
during and in relation to a drug trafficking crime. The record shows that the District
Court defined the term "carry" under the statute and set forth the essential elements of the
crime. Furthermore, the District Court engaged in a lengthy colloquy before determining
that Golden was fully aware of the essential elements of the charges to which he was set
to plead guilty.
We reject Golden’s contention that the facts and circumstances of the case were
insufficient to support the conviction. There was evidence that Golden had his gun in a
readily accessible area and did not exit the vehicle to complete the drug buy, remaining in
the vehicle near his gun. Golden’s belated argument that it was a "mere coincidence" that
his firearm was in his vehicle at the time of the drug deal because he routinely carried a
gun in his car in connection with his hobby of gun collecting is not persuasive. Nor was

-- 2 of 3 --

it necessary that the gun have been used. We have stated that "there is no need to show
that the defendant’s gun possession actually ’caused’ any particular effect." United States
v. Loney, 219 F.3d 281, 288 (3d Cir. 2000).
The District Court did not abuse its discretion in denying Golden’s motion to
withdraw his guilty plea. For the reasons set forth, we will affirm.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

-- 3 of 3 --