01-1495 United States of America v. Ronald Harris

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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01-1495
____________
UNITED STATES OF AMERICA
v.
RONALD HARRIS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 97-cv-039901
District Judge: Honorable Herbert J. Hutton
Submitted: April 8, 2002
BEFORE: McKEE, BARRY & ALARCON, Circuit Judges
(Opinion Filed: May 3, 2002 )
_____________________
OPINION OF THE COURT
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McKee, Circuit Judge.
Ronald Harris and Howard Gordon were charged with a variety of federal
offenses stemming from two armed robberies of beverage truck drivers in Philadelphia,
Pennsylvania. Harris pled guilty and agreed to provide "substantial assistance" in
exchange for the government’s promise to move for a downward departure at sentencing
pursuant to U.S.S.G. 5k1.1. However, at sentencing, the government refused to make
that motion because of Harris’ purported failure to fully cooperate. Harris responded by
moving to enforce the plea agreement or, in the alternative, to withdraw his guilty plea.
The district court denied both motions and this appeal followed. For the reasons that
follow, we will affirm.
I
Inasmuch as we write only for the district court and the parties who are familiar
with the circumstances underlying the instant appeal, we need not recite the factual or
procedural background of this dispute at any length.
A.
Harris makes several arguments in support of his attempt to have the plea
agreement enforced or the plea withdrawn. First, he alleges that the government acted in
bad faith in refusing to move for a downward departure under 5K1.1. More
specifically, Harris claims that he provided substantial assistance, and that the
government misstated critical facts concerning his cooperation at sentencing and also
failed to adequately pursue information he provided.
We apply contract principles in reviewing an alleged violation of a plea
agreement. United States v. Swint, 223 F.3d 249, 253 (3d Cir. 2000); see also United
States v. Isaac, 141 F.3d 477, 481-82 (3d Cir. 1998). The government must adhere to the
terms of a plea agreement because such an agreement induces a defendant to enter a
guilty plea and provides the consideration for the defendant’s admission of guilt. United
States v. Huang, 178 F.3d 184 (3d Cir. 1999). However, a defendant has the burden of
establishing that the government breached the agreement by a preponderance of the

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evidence. See United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991).
As noted here, the government agreed to move for a downward departure if Harris
provided substantial assistance. For purposes of the agreement, "substantial assistance"
meant that Harris agreed to provide truthful, complete, and accurate information
regarding any known criminal activity and that he could not protect any person by
omission. The agreement also clearly stated that it was within the government’s sole
discretion to determine whether Harris had substantially cooperated as required by the
agreement.
Although this qualification in favor of the government does not entitle the
government to arbitrarily disavow its obligation to file a 5K1.1 motion, it does give the
government discretion to evaluate Harris’ assistance and refuse to file a motion if it
honestly concludes that Harris’ level of cooperation was less than required by the plea
agreement. United States v. Abuhouran, 161 F.3d 206 (3d Cir. 1998). Therefore, if the
government honestly evaluated Harris’ cooperation and came to a good faith conclusion
that his assistance did not warrant a 5K1.1 motion, it was not obligated to make such a
motion. The government argues that this is precisely what happened. It contends that
Harris refused to offer information about crimes he had not been charged with, and he
also refused to disclose the name of a third individual who was involved with Harris and
his codefendant.
In support of its allegation, the government points to Harris’ own admissions
before the district court during his February 22, 2001 sentencing hearing. There, in a last
ditch effort to withdraw his guilty plea, Harris stated that he thought the plea agreement
only required him to give details of the crimes he had been charged with. He also
claimed he didn’t think he had to implicate anyone other than Gordon, the codefendant in
the instant case.
Harris now argues that the government’s assessment of his cooperation is
inaccurate. He insists that he did cooperate, and the government misrepresented facts by
inventing a third suspect and then faulting him for not providing a name. However, the
record contains nothing that might support this assertion. Moreover, the government
represented during the sentencing hearing that the records of the Philadelphia Police
Department were inconsistent with Harris’ denials of a third person and that
representation was not contradicted. Consequently, Harris has not met his burden of
refuting the government’s stated reasons for refusing to move for a downward departure.
Harris also attempts to establish the government’s bad faith by claiming that the
government failed to adequately develop the information that he did provide. He
contends that where plea agreements condition a 5K1.1 motion on substantial assistance,
the government must make a good faith effort to use the information that is provided.
Although we agree with this as a general statement of principle, we do not believe it
assists Harris here.
Harris’ argument to the contrary rests upon two instances which he claims
establish the government’s inadequate use of information he provided. He first claims
that the government failed to locate a witness who could corroborate information he
provided. Harris notes that the government had the witness’ social security number and
infers that the government could therefore have located the witness had it tried. Second,
Harris refers to a separate instance where the government allegedly made no effort to use
information he provided regarding an unsolved robbery.
The government asserts that it made adequate but unsuccessful efforts to locate
the witness in question and diligently followed up on all information Harris provided.
Harris’ attorney refused to challenge the government’s investigative efforts at the first
sentencing hearing although he was afforded that opportunity. When the court asked
defense counsel if the government’s statement of its effort to use Harris’ information was
accurate, counsel confirmed that it was.
B.
Harris also claims that the district court erred in failing to hold a hearing on the
quality of his cooperation. However, "[t]he Supreme Court has repeatedly noted that
courts are properly hesitant to examine prosecutorial decision making." Abuhouran, 161
F.3d at 216 (internal quotation marks omitted). Furthermore, in Issac, we outlined the
procedures to be followed when a defendant challenges the government’s refusal to file a
5K1.1 motion. There, we noted:
[W]e do not suggest that an evidentiary hearing must be held

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every time a defendant challenges the prosecutors exercise of
discretion . . . . To trigger judicial review of the prosecutor’s
decision [not file a 5K1.1 motion in contravention of a
written plea agreement], the defendant must first allege that
he . . . believes the government is acting in bad faith. The
government may rebut this allegation by explaining its
reasons for refusing to depart. If the government explains its
reasons, the defendant must make a showing of bad faith to
trigger some form of hearing on that issue. Unless the
government’s reasons are wholly insufficient, or unless the
defendant’s version of events, supported by at least some
evidence, contradicts the government’s explanation, no
hearing is required
141 F3d at 484 (citations and quotation marks omitted). Inasmuch as the government’s
version was not contradicted here, no evidentiary hearing was required.
C.
We also disagree with Harris’ claim that the district court silenced Harris without
affording him an opportunity to refute the government’s representations about the quality
of his cooperation. Harris did challenge the government’s refusal to recommend a
downward departure, at which point the court asked the government to justify its
decision. Immediately after the government explained its refusal to tender a 5K1.1
motion, the court invited Harris’ attorney to rebut the government’s proffer. As noted
above, Harris’ attorney declined this invitation. Rather, he indicated that the
government’s recitation of events was accurate, but suggested that Harris might like to
address the court for himself. This prompted the court to warn that it would be unwise
for Harris to say anything that might prejudice his then pending motion to withdraw his
guilty plea.
Defense counsel said nothing at that point, and the court then continued
discussing Harris’ motion to withdraw his guilty plea. Thereafter, neither Harris nor his
attorney attempted to contradict the government’s representation. Thus, it appears from
this record that defense counsel made a conscious decision not to challenge the
government’s explanation of its refusal to make a 5K1.1 motion. Harris had an
opportunity to confer with counsel at this point and yet there was no objection to the
government’s explanation. Furthermore, at the second sentencing hearing on February
22, 2001, the defendant did address the court. He took that opportunity to explain that he
thought he only had to tell the government what he and Gordon did in regard to the
offense with which they were charged. He insisted that he never understood that he was
agreeing to inform on others, or discuss uncharged crimes. (App. 99). In fact, he
continues to argue that he would not have pled guilty had he understood that the
government was expecting him to disclose anything about uncharged offenses, or anyone
other than Gordon. Thus, Harris’ own statements on this record strongly corroborate the
government’s view of Harris’ cooperation.
D.
Harris also argues that the district court erroneously denied his alternative motion
to withdraw his guilty plea, and erred in not explaining why it was denying his motion.
We reject both of these arguments.
Harris’s reasons for wanting to withdraw his guilty plea can best be summarized
as follows: (1) he didn’t understand the meaning of "cooperation" and "sole discretion"
as used in the plea agreement; (2) he hastily entered into the plea agreement; and (3) he
was actually innocent, but thought he would save the government time and money if he
plead guilty.
Under Fed. R. Crim. P. 32(d), a criminal defendant does not have an absolute right
to withdraw a guilty plea. United States v. Martinez, 785 F.2d 111, 113 (3d Cir. 1986).
We have identified the following three factors that guide a court’s discretion in
exercising its discretion to grant or deny a motion to withdraw a guilty plea: (1) whether
the defendant asserts his innocence; (2) whether the government would be prejudiced if
the plea is withdrawn; and (3) the strength of the defendant’s reasons for moving to
withdraw. United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989); United States v.
Trott, 779 F.2d 912, 915 (3d Cir. 1985.). Moreover, as to the first factor, the defendant

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must not only assert his innocence but also provide a sufficient explanation for why he
took the contrary position during the Rule 11colloquy. See United States v. Harris, 44
F.3d 1206, 1210 (3d Cir. 1995).
Harris did finally assert his innocense here, but he delayed doing so until he was
standing before the judge to be sentenced. Moreover, almost 27 months elapsed between
Harris’ original guilty plea, and his subsequent recantation of it. The district court could
clearly consider a delay of that magnitude in deciding if it would be appropriate to allow
Harris to withdraw the guilty plea he had entered more than 2 years earlier. See
Fed.R.Crim.P. 35 Advisory Committee note at 114 (West 1995) (quoting United States v.
Barker, 514 F.2d 208, 222 (D.C. Cir. 1973).
Moreover, the government makes a credible claim that it would be prejudiced if
Harris were allowed to change his plea now. The government points out that
codefendant Gordon had been prepared to testify against Harris pursuant to a separate
plea agreement when Harris originally pled guilty. However, Gordon has now been
sentenced and therefore has little incentive to testify. Thus, the government is now
understandably concerned that Gordon may "go south" if put on the witness stand. That
concern is well taken.
Moreover, although the government can show prejudice here, we note that the
government is not required to make any such showing where, as here, a defendant offers
insufficient reasons for withdrawing a guilty plea. See United States v. Harris, 44 F.3d
1206, 1210 (3d Cir. 1995).
We also note that Harris’ argument that he did not understand the nature of the
agreement is completely belied by the record. Harris’ attorney went over the agreement
with him. In fact, the district court delayed the March 6, 1998 sentencing hearing so that
Harris’ attorney could finish discussing the agreement with Harris. Furthermore, the
judge went through the agreement with Harris at the same hearing making sure that he
understood it. The court even had Harris explain the meaning of a provision in the
agreement back to the court in the defendant’s own words. That is the very same
provision he now insists that he did not understand. (App. 71) (explaining to the court,
at the court’s request, that "sole discretion" meant "by myself."). Moreover, the district
court gave the standard warning, informing Harris of the substantive rights he was
relinquishing by signing the agreement and entering his plea. Harris acknowledged that
he understood everything, and that he still wanted to forego all of the rights and
protections that had just been explained and proceed to plead guilty. He has now clearly
had a change of heart, but that is not enough to establish an abuse of discretion.
Moreover, Harris’ contention that the district court was required to make findings
of fact and conclusions of law before denying his request is without merit. Findings of
fact and conclusions of law are not required where the record establishes that the
defendant is not entitled to relief. See Smith v. United States, 213 F.2d 730, 731 (6th Cir.
1954).
E.
Lastly, Harris raises several claims under the umbrella of ineffective assistance of
counsel. However, ineffective assistance claims must be raised in a separate petition
under 28 U.S.C. 2255 so that a sufficient factual basis can be developed to permit
meaningful review. See United States v. Gambino, 788 F.2d 938, 950 (3d Cir. 1986).
Therefore, we will not address those claims here. Harris may assert them later in a
properly filed motion under 28 U.S.C. 2255.
II
For all the foregoing reasons we will affirm the decision of the district court.
TO THE CLERK:
Please file the foregoing not precedential opinion.
By the Court,
/s/Theodore A. McKEe
Circuit Judge

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