United States of America v. Quinton J. Lomack

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2007
Decided March 22, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2625
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUINTON J. LOMACK,
Defendant-Appellant.
Appeal from the United States
District Court for the Western
District of Wisconsin
No. 06-CR-03-S-01
John C. Shabaz,
Judge.
O R D E R
Quinton Lomack was indicted for possessing a firearm following a felony
conviction, see 18 U.S.C. § 922(g)(1), and possessing with intent to distribute more
than five grams of crack cocaine, see 18 U.S.C. § 841(a)(1). He agreed to plead
guilty to the cocaine charge in exchange for the government’s promise to dismiss the
gun charge. A couple of months after the district judge accepted the guilty plea in a
hearing in which Lomack admitted his guilt, Lomack moved to withdraw his plea.
The judge denied the motion and sentenced Lomack to 162 months’ imprisonment
(plus three years of supervised release). On appeal, Lomack contests only the
district court’s denial of his motion to withdraw his plea. Because the judge did not
abuse his discretion in denying Lomack’s request to withdraw his plea, we affirm
the judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2625 Page 2
On November 14, 2005, Officer Denise Markham went to the home Lomack
shared with his girlfriend, Lakeasha Brown, to arrest him on an outstanding
warrant. Officer Markham found Lomack outside, and, when he resisted arrest,
Markham used pepper spray to restrain him. A pat-down search turned up
marijuana and $1600 in Lomack’s pants pocket. Officer Markham then escorted
Lomack to the apartment to wash out the pepper spray; Brown let them in. Soon
additional officers showed up, and, after Lomack left, the officers asked Brown if
she knew where Lomack kept his gun. Brown led Officer Markham and Officer
David Wixom to a bedroom, where she opened several drawers and said, “[h]e
usually keeps it in here.” Officer Wixom located under the mattress a loaded .40
caliber handgun, which Brown stated belonged to Lomack. The officers also found
crack cocaine and a digital scale sitting on the nightstand by the bed, approximately
2-3 feet from the gun. Brown then led the officers to the kitchen, where she
retrieved a box of ammunition that she said belonged to Lomack.
Lomack initially denied possessing either the cocaine or the gun, but
eventually agreed to plead guilty to the cocaine charge in exchange for the
government’s promise to, among other things, dismiss the gun charge and
recommend that he receive the maximum reduction for acceptance of responsibility
(contingent, of course, on him behaving accordingly). At the change-of-plea hearing,
Lomack said that he had read and understood the terms of the plea agreement and
had discussed it with his attorney. The district court confirmed that Lomack
understood that the government had made no promises with respect to his sentence
and that the government would make its full criminal file available to the Probation
Office for its presentence investigation report (PSR). Lomack swore that he had not
been pressured or coerced to plead guilty, that he understood the potential
sentencing consequences of his plea, and that he and his attorney had discussed the
application of the sentencing guidelines to his case. Lomack then admitted that he
had possessed the cocaine base found at the apartment he shared with Brown and
that he had intended to distribute it. The district court accepted Lomack’s guilty
plea.
The PSR recommended that Lomack receive a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) because he possessed a gun in connection with the drug
offense. See U.S.S.G. § 2D1.1 cmt. n.3 (recommending the enhancement if a weapon
was present, “unless it is clearly improbable that the weapon was connected to the
offense”). Lomack objected to the enhancement, arguing that the government had
not established by a preponderance of the evidence that the gun was his. In support
of his objection, Lomack submitted an affidavit signed by Brown in which she swore
that Lomack did not live with her, that the gun the officers had retrieved was not
his, and that she had never seen him with a gun. The probation officer responded
to the objection by recommending, in an addendum to the PSR, that Lomack not

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No. 06-2625 Page 3
receive a reduction under § 3E.1.1 for acceptance of responsibility because, in
contesting his possession of the gun, he was falsely denying relevant conduct. The
probation officer further recommended that, should the judge find that Lomack had
suborned perjury from Brown, he should receive an enhancement for obstruction of
justice. See U.S.S.G. § 3C1.1.
Lomack moved to withdraw his plea, arguing as relevant here that he did not
realize that the gun could be used against him at sentencing and that the
government had acted in “bad faith” by not recommending acceptance of
responsibility points. The district court denied the motion, finding that Lomack had
not presented a “fair and just” reason to withdraw his plea. The court explained
that Lomack had not presented any reason to doubt the voluntariness of his plea or
the veracity of his statements during the plea colloquy. The district court also told
Lomack that his denial of relevant conduct should be raised at sentencing, not in a
motion to withdraw his guilty plea.
At sentencing, the district court heard testimony from Officers Markham and
Wixom, and determined by a preponderance of the evidence that Lomack had
possessed a gun in connection with the drug offense. The district court also found
that Lomack had obstructed justice by submitting a false affidavit from Brown. See
U.S.S.G. § 3C1.1 cmt. n.4(b). Based on Lomack’s denial that the gun was his, the
district court declined to award him any points for acceptance of responsibility. See
U.S.S.G. §3E1.1 cmt. n.1(a). Lomack was sentenced within the range recommended
by the guidelines.
Lomack’s sole argument on appeal is that the district court abused its
discretion in denying his motion to withdraw his guilty plea. See United States v.
Roque-Espinoza, 338 F.3d 724, 726 (7th Cir. 2003). He contends that he did not
know that he could be held responsible for the gun as relevant conduct at
sentencing, and that the district court’s failure to inform him is a “fair and just”
reason to withdraw the plea, see Fed. R. Crim. P. 11(d)(2)(B). He also believes that
the government “pulled the rug out from under him” by not recommending that he
receive a sentence reduction for acceptance of responsibility because he had
maintained, both before and after the plea agreement, that the gun was not his.
Lomack faces an uphill battle; we review for clear error a district court’s
determination that a defendant did not present a “fair and just reason” to withdraw
his plea. United States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005). One such “fair
and just reason” is if a defendant’s plea was involuntary. United States v. Ellison,
835 F.2d 687, 692-93 (7th Cir. 1987). However, the record created by a Rule 11
inquiry is presumed to be true, United States v. Trussel, 961 F.2d 685, 689 (7th Cir.
1992) (citation and quotation marks omitted), and “statements made to a federal
judge in open court are not trifles that defendants may elect to disregard.” United

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No. 06-2625 Page 4
States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999). The fact that a defendant
underestimated his sentence at the time of his plea is generally not a fair and just
reason to permit him to withdraw, United States v. Gilliam, 255 F.3d 428, 433 (7th
Cir. 2001), and the district judge “is not required to, and often cannot, at the time
the plea is tendered, inform the defendant of the effects the application of the
Sentencing Guidelines will have on the sentence.” United States v. Knorr, 942 F.2d
1217, 1220 (7th Cir. 1991).
The district court did not clearly err when it determined that Lomack’s
professed ignorance about the sentencing consequences of his plea was not a “fair
and just reason” to allow him to withdraw. During his plea hearing, Lomack swore
he understood that the United States would make its full file available to the
Probation Office for use in preparing its PSR. He swore that he understood that the
government “had made no promises or guarantees regarding the sentence which
would be imposed.” He also stated that he had spoken to his attorney about how
the sentencing guidelines might apply to his case. Lomack may well have believed
that the government’s willingness to dismiss the gun charge implied that it believed
the gun was not his. But his sworn statements, which carry a presumption of
verity, see Trussel, 961 F.2d at 689, show that he was aware (or should have been
made aware, by his attorney) that the gun could be used against him at sentencing.
We will not overturn the district court’s decision “to treat freely given sworn
statements as conclusive.” Stewart, 198 F.3d at 987.
Similarly unavailing is Lomack’s contention that withdrawal of his plea is
warranted by the government’s failure to recommend a reduction for acceptance of
responsibility. His argument does not comport with his own sworn statements at
the plea hearing, in which he acknowledged that the government was not required
to make the recommendation “should [he] engage in any conduct between the date
of [the] plea agreement and the sentencing hearing which is inconsistent with
acceptance of responsibility.” After the plea hearing Lomack gambled and lost by
submitting an affidavit signed by Brown in which she directly contradicted his
sworn testimony as well as her own statements to the police. Based on the false
affidavit, the government declined to recommend a reduction for acceptance of
responsibility and sought an enhancement for obstruction of justice. See U.S.S.G.
§ 3E1.1 cmt. n.4; § 3C1.1 cmt. n.4(b). This is not a case of the government “pull[ing]
the rug out from under” him, see United States v. Hauptman, 111 F.3d 48, 51 (7th
Cir. 1997); Lomack had sworn, only weeks before, that he was aware that the
government could do so.
AFFIRMED.

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