                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

USA v. Dowe
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2823




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Recommended Citation
"USA v. Dowe" (2002). 2002 Decisions. Paper 441.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/441


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                                                                           NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 01-2823



                      UNITED STATES OF AMERICA

                                 v.

                           PATRICE DOWE,
                       a/k/a Patrick Winters,
                          a/k/a "Patrick"

                           Patrice Dowe,
                                          Appellant


         On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. Crim. No. 99-cr-00060-5)
            District Judge: Hon. Stephen M. Orlofsky



            Submitted Under Third Circuit LAR 34.1(a)
                           July 22, 2002

      Before:   SLOVITER, NYGAARD, and BARRY, Circuit Judges

                       (Filed: July 25, 2002)



                       OPINION OF THE COURTSLOVITER, Circuit Judge.
     Patrice Dowe appeals the judgment of sentence. After indictment in the United
States District Court for the District of New Jersey, Dowe pleaded guilty to one count of
conspiracy to distribute and to possess with intent to distribute more than five kilograms
of cocaine, contrary to 21 U.S.C. 841(a)(1), in violation of 21 U.S.C. 846. The
District Court sentenced Dowe to 135 months. In this appeal, Dowe challenges the
District Court’s denial of his motion to withdraw his guilty plea pursuant to Rule 32(e) of
the Federal Rules of Criminal Procedure and the District Court’s denial of a downward
adjustment as a minimal participant under 3B1.2 of the United States Sentencing
Guidelines. We will affirm.
     The District Court had jurisdiction under 18 U.S.C. 3231. This court has
jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742.
                               I.
     Dowe first argues that the District Court abused its discretion in refusing to permit
him to withdraw his guilty plea. Under Rule 32(e) of the Federal Rules of Criminal
Procedure, a District Court may permit a defendant to withdraw his guilty plea before the
sentence is imposed "if the defendant shows any fair and just reason." Fed. R. Civ. Proc.
32(c). The defendant bears the burden of demonstrating such a "fair and just reason."
United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). Three factors are relevant in
evaluating whether a defendant has demonstrated a "fair and just reason:" "(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). We review the District
Court’s decision not to grant a withdrawal of a guilty plea for abuse of discretion. Isaac,
141 F.3d at 485.
     We consider first the innocence prong of the "fair and just reason" inquiry. Dowe
does not assert he is innocent of the underlying charge of conspiracy to distribute and
possess, with intent to distribute, cocaine. Instead, Dowe claims that he was not
responsible for the quantity of cocaine to which he stipulated as part of his plea
agreement. Dowe stipulated that, for purposes of sentencing, his "offense and all
relevant conduct involved more than fifteen kilograms of cocaine, but less than fifty
kilograms of cocaine." App. at 32. The District Court concluded that Dowe had not
presented "credible evidence supporting [his assertion of innocence]." App. at 123.
     This court has previously observed that "[b]ald assertions of innocence . . . are
insufficient to permit a defendant to withdraw her guilty plea." Brown, 250 F.3d at 818.
"’Assertions of innocence must be buttressed by facts in the record that support a claimed
defense.’" Id. (alteration in original) (quoting United States v. Salgado-Ocampo, 159
F.3d 322, 326 (7th Cir. 1998)). In Brown, we held that a defendant who failed to
"present[] any evidence that she did not" commit the crime to which she had pled guilty
could not withdraw her plea. Id. The District Court did not err in determining that Dowe
had not presented any compelling evidence supporting his claim that he was not
responsible for the 15 to 50 kilograms of cocaine to which he stipulated. Although
Dowe argues the District Court should have held an evidentiary hearing on that issue, he
has failed to point to any witness or evidence which the District Court might more
profitably have considered during such a proceeding.
     We next consider Dowe’s contention that he presented strong reasons for
withdrawing his plea. Dowe suggests that he should be permitted to withdraw his plea
because his decision to enter a plea of guilty was the result of inadequate representation
by his prior counsel, Marc Neff, who negotiated the plea agreement. Although Dowe
acknowledges that he did not object to the plea agreement at the plea hearing, he asserts
that he first expressed his concerns shortly thereafter. As evidence of his unease, Dowe
points to a letter from Neff written three days after the plea hearing in which Neff
reassured Dowe that "you have not waived any rights with respect to appealing any issue
relating to your sentencing." App. at 61. Dowe did not seek to withdraw his guilty plea
until shortly after receiving the Pre-Sentence Report. App. at 99-100.
     At his plea hearing, Dowe acknowledged under oath that he was "fully satisfied
with the legal advice and representation [he] received in this case from Mr. Neff." App.
at 44. He agreed that he had "an opportunity to read and discuss the plea agreement with
Mr. Neff before [he] signed it." App. at 45. He conceded that he "underst[oo]d the
terms of the plea agreement in this case." App. at 45. Finally, Dowe admitted that he
"underst[oo]d that there are certain stipulations in this plea agreement which are
contained in schedule A to the plea agreement." App. at 57. Given these circumstances,
Dowe’s proffered reason for withdrawing his guilty plea is not persuasive.
     Finally, we turn to whether the government would have been prejudiced if the
District Court had permitted Dowe to withdraw his plea. As the District Court observed:
     To allow Dowe to withdraw his guilty plea now would force the
     government to reinvent the wheel, so to speak, because the charge against
     Dowe is essentially the same charge that was presented to this Court and a
     jury in a four week trial. The government would then be required to
     conduct a substantially similar trial involving many of the same witnesses.

App. at 124-25. Although Dowe suggests that the District Court might have avoided the
necessity of retrying the case by allowing Dowe to litigate quantity alone, that also would
have necessitated a retrial with some of the same witnesses. We cannot say the District
Court abused its discretion in finding that the government would be prejudiced by
permitting Dowe to withdraw his guilty plea.
     Because the District Court did not err in determining Dowe failed to meet each of
the three factors required to demonstrate a "fair and just reason" to withdraw his guilty
plea, we conclude that the District Court did not abuse its discretion in denying his Fed.
R. Crim. Proc. 32(e) motion.
                              II.
     Dowe also argues that the District Court erred in denying him a downward
adjustment for having played a lesser role in the offense under U.S.S.G. 3B1.2. We
review the District Court’s factual findings for clear error and its legal interpretation of
the Sentencing Guidelines de novo. United States v. Brown, 250 F.3d 811, 818 (3d Cir.
2001).
     The relevant factors in determining whether a drug courier is entitled to a
downward adjustment under U.S.S.G. 3B1.2 include "’the nature of the defendant’s
relationship to the other participants, the importance of the defendant’s actions to the
success of the venture, and the defendant’s awareness of the nature and scope of the
criminal enterprise.’" United States v. Isaza-Zapata, 148 F.3d 236, 239 (3d Cir. 1998)
(alteration in original) (quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.
1991) (quoting United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990))).
     Dowe purchased substantial quantities of cocaine and transported that cocaine
back to Atlantic County. Dowe appears to have worked closely with those who
organized the time, place and price of the cocaine purchases. Like the other
coconspirators, Dowe sold the cocaine on returning to Atlantic County. Finally, Dowe
was involved in the conspiracy for over four years.
     Dowe’s involvement as a trusted and experienced courier and seller of cocaine
were important to the success of the conspiracy. His involvement in the conspiracy for
over four years supports a determination that he was aware of the scope and the nature of
the enterprise. The record supports the District Court’s conclusion that Dowe did not
merit a "mitigating role" adjustment pursuant to 3B1.2.
                              III.
     For the reasons set forth, we will affirm the District Court’s judgment of sentence.
_________________________

TO THE CLERK:

          Please file the foregoing opinion.



                    /s/ Dolores K. Sloviter______________________________
                          Circuit Judge
