United States of America v. Tanya M. Wesley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-4349
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UNITED STATES OF AMERICA
v.
TANYA M. WESLEY,
Appellant
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 00-cr-00012J
District Judge: The Honorable D. Brooks Smith, Chief Judge
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Submitted Under Third Circuit LAR 34.1(a)
November 19, 2002
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Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN, District Judge
(Opinion Filed: December 10, 2002)
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OPINION
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BARRY, Circuit Judge
Tanya M. Wesley appeals the denial of her motion to withdraw her guilty plea.
She argues that that motion should have been granted because (1) she is actually innocent;
(2) for a variety of reasons, the plea colloquy was defective; and (3) her counsel was
ineffective. We have jurisdiction pursuant to 28 U.S.C 1291 and will affirm.
Ms. Wesley was indicted for conspiring with her son, Robert L. Wesley, and with
Sedric A. Morris to distribute in excess of 50 grams of crack cocaine. She entered into a
plea agreement and pled guilty to an information charging her with acting as an accessory
after the fact in violation of 18 U.S.C. 3. On August 28, 2000, she was sentenced to 18
months of imprisonment and two years of supervised release.
Shortly thereafter, Ms. Wesley wrote a letter to the District Court asking for
permission to withdraw her guilty plea. The Court treated her letter as a motion under 28
U.S.C. 2255, and appointed counsel to represent her. Counsel filed an amended motion,
which the District Court denied in an order dated November 19, 2001. We review the
denial of a 2255 motion de novo. United States v. Cleary, 46 F.3d 307, 309-310 (3d
Cir. 1995).
To be entitled to post-sentence relief under 2255, a defendant must show "a
fundamental defect which inherently result[ed] in a complete miscarriage of justice or an
omission inconsistent with the rudimentary demands of fair procedure." Cleary, 46 F.3d
at 311. This is a high standard, indeed, in large part because of the great interest in the
finality of judgments. Id. at 310. This interest in finality has special force when a
conviction is based on a guilty plea because of the reduced risk that unfair procedures
resulted in the conviction of an innocent person. Id.
Ms. Wesley argues, first, that she was entitled to withdraw her guilty plea because

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she had made a credible claim of actual innocence. She contends that a review of the
criminal complaint and of the government’s recitation of the factual basis for her plea at
the plea hearing belie her guilt because, even when viewed in the light most favorable to
the government, all that the government’s allegations establish is that she was present at
the time that a drug transaction occurred. The District Court rejected this contention,
finding that the government’s allegations, if proven, would establish more than that. As
the Court observed, the government alleged that (1) a crime was committed (conspiracy to
distribute drugs); (2) Ms. Wesley knew that the crime was committed (she was present
during the drug transaction and received the proceeds of the transaction); and (3) she
assisted the individuals who committed the crime by delaying their apprehension (she told
the police that the $1900.00 found in her pocket was hers).
Ms. Wesley also argues that her claim of actual innocence is credible because she
never admitted that she was a knowing and wilful accessory to the drug offense
committed by her son and Morris. However, as the government points out, by the time
she filed her motion to withdraw her plea, she had told at least three inconsistent stories
about where the money came from. She did not attempt to reconcile the various accounts
in that motion and has not attempted to do so in the brief she submitted to us. All she has
done is to make a bald assertion of innocence, which is simply not enough. United States
v. Brown, 250 F.3d 811, 818 (3d Cir. 2001).
Ms. Wesley argues, next, that her guilty plea should be vacated because the Rule
11 colloquy was defective. She complains, for starters, that the District Court did not
make it clear -- or at least clear to her -- that knowledge and intent are elements of the
crime of accessory after the fact. Rule 11 requires that a judge taking a guilty plea
"inform the defendant of, and determine that the defendant understands . . . the nature of
the charge to which the plea is offered." Fed. R. Crim. P. 11(c)(1).
The District Court informed Ms. Wesley of the elements of the crime of acting as
an accessory after the fact:
First. That someone else committed a crime, someone other than you.
Secondly, that you had actual knowledge of the crime and of the
participation of the other person or persons in the crime. And, thirdly, that
with that knowledge of this crime, you, in some way, assisted the other
persons with the specific purpose or a plan to hinder or to prevent that
person’s apprehension at trial for punishment.
App. at 71a-72a.
Ms. Wesley was thus told clearly and concisely that knowledge and intent of the
underlying crime were elements of the crime to which she was pleading guilty. After the
prosecutor presented his summary of the facts, however, the following exchange took
place:
THE COURT: Mr. Gleason, before I continued [sic] with the
questions, will you consult with Miss Wesley, please,
and just verify those facts as to what she did? I am not
concerned about other details here.
MR. VALCOVCI: Your Honor, I simply brought those out to show that
there was another crime being committed in her
presence.
MR. GLEASON: She accepted the money from her son, Robert at that
place. The statements she made afterwards when she
was arrested, were the statements that she made at that
time. However, the evidence shows it was, you know,
different, and the main crux of her criminal
participation, which was minimal, and which we will
advance in our presentence report, is that she did
receive this money, and the money came from a, quote,
unquote, corrupt sense [sic], and that she took part in a
criminal enterprise by secreting, securing and taking
the money.

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THE COURT: All right.
MR. GLEASON: Which is what any accessory does after the completion
of the drug transaction, because she did not deliver the
drug.
THE COURT: I didn’t understand there to be an allegation that she
delivered.
MR. GLEASON: She didn’t I just want to emphasize that to the Court.
THE COURT Her participation was not that. I understood it.
THE COURT: Miss Wesley, do you agree with your attorney’s
summarization as to what you did? I am not asking
you about the Government’s longer recitation, but just
his summary as to what you did?
MS. WESLEY: I received the money part? Yes, sir. That is all.
THE COURT: And does it remain your wish to plead guilty to this
one count in the information, Miss Wesley?
MS. WESLEY: Yes, sir.
App. at 84a-86a. Given that the crime of acting as an accessory after the fact has as
elements knowledge and intent, the District Court’s request that Ms. Wesley verify only
"those facts as to what she did" had the potential to create confusion because no one,
including Ms. Wesley, said during this exchange that she took the money knowing it was
drug money or that in some way she protected her son and Morris from the police. Ms.
Wesley’s statement that she admitted to the "received the money part," but that was "all,"
further confuses the issue.
In her motion to withdraw her plea, Ms. Wesley stated that "[s]he believed, based
on her counsel’s advice and the lack of specific explanation of the elements in the
colloquy, that her admission of taking the money was enough to make her guilty and
support the plea." App. at 35a. She states in her brief to us that if she had been asked (1)
whether she knew that the money was the proceeds of a drug transaction, and (2) whether
she then acted to prevent the apprehension of those who were involved, she "would have
spoken in a completely contrary manner to everything she had otherwise said in this case
if she would have admitted such knowledge and intention." Appellant’s Brief at 26.
While the above quoted exchange is somewhat confusing, everything else in the
record supports the conclusion that Ms. Wesley knew exactly what she was pleading to.
First, it is clear from the information itself that knowledge and intent are elements of the
crime charged. At the plea hearing, Ms. Wesley told the District Court that she received a
copy of that information, understood what it charged her with having done, and that she
had had time to consult with her attorney about it. Counsel represented that he had
reviewed the information with Ms. Wesley. Thereafter, the District Court explained the
elements of the offense to her, and she responded in the affirmative not only when the
Court asked her if she understood those elements but again when the Court asked if she
admitted her "guilt to the elements of that offense as the government alleges it to have
occurred on or about December 1, 1999." App. at 72a. She responded in the negative
when the District Court asked if she had any questions about the elements of the crime.
Ms. Wesley’s second complaint regarding the colloquy is related to the first and
similarly fails. She argues that the District Court did not explain that the crime to which
she was an accessory after the fact was conspiracy to distribute more than 50 grams of
crack cocaine and had she been so informed it "would have alerted her to the nature of the
circumstances under which she was entering the plea . . . [and] almost certainly would
have caused her to protest on the record . . . that she was ignorant of and not involved in
any drug activity." Appellant’s Brief at 29. But Ms. Wesley was originally charged with

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the very conspiracy of which she claims she was not informed. In addition, the fact that
the underlying offense is conspiracy to distribute more than 50 grams of crack cocaine is
set forth in the information to which she pled guilty, the information she had reviewed
with counsel and testified she understood. Finally, she was in court when her co-
defendants pled guilty to the conspiracy.
Ms. Wesley’s also complains that the Court failed to apprise her adequately in the
Rule 11 colloquy of the maximum sentence she faced. Under Rule 11(c)(1), the Court is
required to "inform the defendant of, and determine that the defendant understands . . .
the maximum possible penalty." Fed. R. Crim. P. 11(c)(1). The Court informed her that
her maximum exposure could not be more than one-half of what her co-defendants faced.
While certainly the Court could have been more explicit in terms of years, there is little
doubt that Ms. Wesley understood the maximum penalty. She executed a plea agreement
which stated that the maximum sentence was 15 years. She also stated at the plea hearing
that she had discussed the maximum sentence with her lawyer and that she had no
questions as to what it could be.
Even if there was a violation of Rule 11, such violations are subject to harmless
error analysis. See Fed. R. Crim. P. 11(h). Thus, even if the District Court had erred in
any respect in the Rule 11 colloquy, reversal is not called for if the error was unlikely to
have affected Ms. Wesley’s willingness to waive her rights and enter a plea of guilty. See
United States v. Powell, 269 F.3d 175, 185-186 (3d Cir. 2001). Ms. Wesley
acknowledged in her brief to us that the plea agreement offered to her "would be envied
by many people facing a charge of conspiracy to distribute more than 50 grams" of crack
cocaine and that it was unsurprising that trial counsel thought the agreement was a "rare
and unique plea opportunity[.]" Appellant’s Brief at 36. Indeed, the extremely favorable
terms offered by the government render her claim that she would have gone to trial had
there been an error-free Rule 11 colloquy preposterous.
Ms. Wesley also claims that her counsel was ineffective because he (1) wrongly
led her to believe that the mere receipt of the money made her guilty; (2) failed to advise
her of the elements of the offense or insist that the Court do so; and (3) further confused
her when he presented the relevant facts to the Court. She argues, as well, that counsel
pressured her to take the plea by telling her that a jury would be likely to find her guilty
and that she might get probation or house arrest if she pled guilty despite the fact the jail
time was mandatory by virtue of the sentencing guidelines.
In order to make out a claim of ineffective assistance of counsel, Ms. Wesley must
show that "(1) her attorney’s performance was, under all the circumstances, unreasonable
under prevailing professional norms, and (2) there is a ’reasonable probability that, but
for counsel’s unprofessional errors, the result would have been different.’" United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992)(quoting Strickland v. Washington, 466 U.S. 668,
687-696 (1984). A reasonable probability is one sufficient to undermine confidence in
the outcome. Id.
We have already rejected, albeit in different clothing, Ms. Wesley’s first three
examples of purported ineffectiveness. We now reject the fourth. There is no reason to
believe that counsel’s advice regarding Ms. Wesley’s chances should she decide to go to
trial on the conspiracy charge was unreasonable under prevailing professional norms.
Similarly, counsel was not ineffective because he told her that a non-jail disposition was a
possibility. Indeed, it was a possibility, as evidenced by the fact that the District Court
departed downward from the 37-46 month range, albeit only to eighteen months. And, of
course, Ms. Wesley does not argue that non-jail time was promised by her attorney, nor
could she given her statement at the Rule 11 proceeding that no one had made any
promises or predictions with regard to her sentence.
The order of November 19, 2001 will be affirmed.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne T. Barry
Circuit Judg

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