United States of America v. Michael Allen Morgret

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-2487
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UNITED STATES OF AMERICA
v.
MICHAEL ALLEN MORGRET,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 02-cr-00085-2)
District Judge: Honorable Malcolm Muir
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Submitted Under Third Circuit LAR 34.1(a)
April 18, 2008
Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges
(Filed: April 22, 2008 )
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OPINION OF THE COURT
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*Honorable Arthur L. Alarcon, Senior Circuit Judge of the Ninth Circuit Court of
Appeals sitting by designation.

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we exercise1
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review for abuse of
discretion the District Court’s decisions to accept Morgret’s guilty plea and to deny his
motions to withdraw that plea. See United States v. Jones, 336 F.3d 245, 252 (3d Cir.
2003) (“We review a district court's ruling denying a defendant's motion to withdraw his
guilty plea before sentencing pursuant to an abuse of discretion standard.”); United States
v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000) (“A district court's finding of a factual
basis for a plea is reviewed for an abuse of discretion.”). We also review the
reasonableness of the sentence under an abuse-of-discretion standard. United States v.
Wise, 515 F.3d 207, 218 (3d Cir. 2008).
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JORDAN, Circuit Judge.
Michael A. Morgret pled guilty to conspiracy to distribute cocaine, in violation of
21 U.S.C. § 846, as well as to conspiracy in violation of 18 U.S.C. § 371. He appeals
from the May 14, 2007 judgment and commitment order entered against him by the
United States District Court for the Middle District of Pennsylvania. Morgret asserts that
he should have been permitted to withdraw his guilty plea and that the sentence imposed
is constitutionally flawed because it was based upon facts decided by the sentencing judge
under a preponderance-of-the-evidence standard rather than being decided by a jury under
a proof-beyond-a-reasonable doubt standard. Finding no error in the District Court’s
decision, we will affirm.
Because we write for the parties, the following discussion assumes familiarity with
the procedural and factual background of the case. Morgret’s first argument is that he1
should have been permitted to withdraw his guilty plea “because he was not informed he
could lose three points for acceptance of responsibility by filing objections to the pre

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According to Morgret, he was in Criminal History Category VI and, with the three-2
point reduction, should have been placed at offense level 33, which meant that he faced
235 to 293 months in prison. Without the three-point reduction, however, he was at
offense level 36 and faced 324 to 405 months in prison. Though he argues this added
“Seven years and Five months ... to [his] presumptive minimum sentence” (App. Br. at
28; original emphasis), Morgret could not fairly presume he would get the minimum
sentence in either range. The arguably more pertinent differential is between the upper
end of the lower range and the lower end of the upper range, which amounts to two years
and seven months. All of this, of course, overlooks that the Guidelines are advisory and
that the District Court was free to impose any sentence up to the statutory maximum, as
long as the sentence was reasonable.
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sentence [sic] report.” (Appellant’s Brief [“App. Br.”] at 24.) “[A] defendant must have
a fair and just reason for withdrawing a plea of guilty. We look to three factors to
evaluate a motion to withdraw: (1) whether the defendant asserts her innocence; (2)
whether the government would be prejudiced by the withdrawal; and (3) the strength of
the defendant's reason to withdraw the plea.” United States v. Brown, 250 F.3d 811, 815
(3d Cir. 2001) (internal citation omitted).
Morgret does not assert his innocence. Rather, his argument centers on the amount
of cocaine for which he’s prepared to admit responsibility. He emphasizes that, before
the District Court accepted his guilty plea, the Court knew that he disagreed with the
government as to the weight of the drugs attributable to him in the drug conspiracy, and
yet, he says, the Court conducted the plea colloquy without giving him any hint that his
disagreement on this point could endanger his being given credit for accepting
responsibility for his crimes and thus endanger his receiving a three-point reduction in the
applicable offense level under the United States Sentencing Guidelines.2

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Because Morgret has not asserted his innocence and because his reasons for seeking to3
withdraw his plea are weak, we need not reach the question of prejudice to the
government. See Jones, 336 F.3d at 255 (“[T]he Government need not show such
prejudice when a defendant has failed to demonstrate that the other factors support a
withdrawal of the plea.”).
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Aside from the fact that an argument about credit for acceptance of responsibility
is not a claim of innocence, what Morgret ignores is that his written plea agreement with
the government contains his signed acknowledgment that “[t]he failure of the Court to
find that the defendant is entitled to this three-level reduction shall not be a basis to void
this plea agreement.” (Supplemental Appendix at 67.) He cannot credibly claim to be
surprised that there was a risk that he would not get a three-level reduction when the
agreement itself apprised him of that risk. Moreover, the record makes clear that the
reason the Court found a reduction for acceptance of responsibility to be inappropriate
was because Morgret’s sentence had been enhanced due to his obstruction of justice. See
Supplemental Appendix at 152 (“Morgret has obstructed justice in this case and is
therefore not entitled to any downward adjustment for acceptance of responsibility.”);
U.S.S.G. § 3E1.1, app. note 4 (“Conduct resulting in an enhancement under § 3C1.1
(Obstructing or Impeding the Administration of Justice) ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.”). Morgret took a plea
knowing his exposure. In short, the reason he advances for withdrawing his plea is
extremely weak.3

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Morgret was no naif about the criminal justice system. He was and is, as the
criminal history set forth in the presentence report shows, a hardened criminal. Since
admitting his guilt under oath during the plea colloquy, he has never denied that he is
guilty. His complaint is with the punishment he faces, but “[a] shift in defense tactics, a
change of mind, or the fear of punishment are not adequate reasons to impose on the
government the expense, difficulty, and risk of trying a defendant who has already
acknowledged his guilt by pleading guilty.” Brown, 250 F.3d at 815 (quotation marks
and citation omitted). There was no abuse of discretion in the District Court’s decision to
deny Morgret’s efforts to withdraw his guilty plea.
Morgret next argues that the District Court erred in accepting his guilty plea
“because the facts admitted in his statement do not match the facts alleged in the
indictment or by the government at the change of plea hearing.” (App. Br. at 37.) Again,
he confuses his disagreement about drug quantities with a lack of foundation for a finding
of guilt. Federal Rule of Criminal Procedure 11(b)(3) states that “[b]efore entering
judgment on a guilty plea, the [district] court must determine that there is a factual basis
for the plea.” Here the Court did exactly that. It conducted a hearing in which it heard
from Morgret and his counsel and from counsel for the government. “Rule 11 does not
mandate that the defendant personally confirm every factual allegation in the indictment.”
United States v. Trott, 779 F.2d 912, 914 (3d Cir. 1985). Nor is there a requirement in the
law that the court “be convinced beyond a reasonable doubt that an accused is guilty. It

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Even under Morgret’s version of the facts, he was sentenced below the statutory4
maximum. He admits responsibility for 422 grams of cocaine and 11 grams of cocaine
base. (App. Br. at 26.) Under 21 U.S.C. § 841(b)(1)(B), his admission about the cocaine
base alone exposed him to 40 years in prison, well in excess of the 324 months to which
he was sentenced.
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need only be convinced that there is sufficient evidence to justify the reaching of such a
conclusion.” United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000) (internal
quotation marks, brackets, and citations omitted). The record amply supports that
conclusion in this case.
Finally, Morgret argues that a jury should have been empaneled to resolve beyond
a reasonable doubt the factual issues pertaining to sentencing, including the drug quantity
dispute. This warrants little response. We have explained that
the right to proof beyond a reasonable doubt does not apply to
facts relevant to enhancements under an advisory Guidelines
regime. Like the right to a jury trial, the right to proof beyond
a reasonable doubt attaches only when the facts at issue have
the effect of increasing the maximum punishment to which
the defendant is exposed.
United States v. Grier, 475 F.3d 556, 565 (3d Cir. 2007) (en banc). None of the issues in
the case threatened to move Morgret’s exposure beyond the statutory maximum. It was4
not error for the District Court to follow our clear precedent.
Accordingly, we will affirm the judgment of conviction and sentence.

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