                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 12-3362
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JOHN B. BAIRD,
                                               Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 10-CR-00339-001)
                  District Judge: Honorable Michael M. Baylson
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 10, 2013
                                   ____________

               Before: FUENTES, COWEN and BARRY, Circuit Judges

                           (Opinion Filed: October 23, 2013)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      John B. Baird pled guilty pursuant to a plea agreement to a four-count indictment

charging mail fraud. He now appeals the denial of his motion to withdraw his guilty plea,

as well as the within-Guidelines sentence that was imposed. We will affirm.
I.     Background

       Baird operated a travel business, Christian Pilgrim Tours, Inc. (“CPT”), which

arranged tours to Christian pilgrimage sites. Many of Baird’s victims were elderly and

retired, and he often enlisted priests and other church leaders to encourage adherents to

go on the CPT tours. From 2004 to 2007, he cancelled seven tours without refunding the

full amount the victims had paid. Indeed, many victims paid for the tours months in

advance (and had been encouraged to do so by Baird), but he did not place the payments

into escrow and admitted that he used the funds to pay personal expenses. Baird

collected from 138 victims approximately $423,577, none of which was refunded by him.

Some victims received partial compensation pursuant to a bankruptcy distribution of

approximately $13,237, and a charitable group provided financial assistance to certain

victims.

       On May 20, 2010, a grand jury charged Baird with four counts of mail fraud, in

violation of 18 U.S.C. § 1341. On January 30, 2012, Baird entered a guilty plea to all

counts pursuant to a plea agreement. As he acknowledged during the change of plea

hearing, the plea agreement contained a waiver of his right to appeal or collaterally attack

his conviction and sentence except in limited circumstances.1

       Prior to sentencing, Baird moved to withdraw his guilty plea. Following a hearing

on July 25, 2012, the District Court denied Baird’s motion to withdraw his plea and

1
  Notwithstanding the waiver, Baird retained his right to appeal in the event that the
government appealed or his sentence exceeded the statutory maximum as to any count,
the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines,
or the sentencing judge imposed an unreasonable above-Guidelines sentence.
                                            2
proceeded to sentencing. The Court concluded that the loss amount for purposes of the

Sentencing Guidelines calculation was over $400,000, and sentenced Baird to a total of

60 months’ imprisonment, within the applicable Guidelines range of 51 to 63 months.

The Court also imposed a period of supervised release and restitution of $410,340. Baird

filed a motion to reconsider and vacate his sentence, which was denied on August 13,

2012.

        Baird appeals the denial of his motion to withdraw the guilty plea and argues that

the sentence that was imposed was unreasonable.

II.     Discussion

        We review a district court’s ruling on a motion to withdraw a guilty plea for abuse

of discretion. United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). Where a

defendant challenges his sentence despite the existence of an appellate waiver, we review

the validity of the appellate waiver de novo. United States v. Gwinnett, 483 F.3d 200,

203 (3d Cir. 2007).

        A.    Withdrawal of Guilty Plea

        Under Federal Rule of Criminal Procedure 11(d)(2)(B), “[a] defendant may

withdraw a plea of guilty or nolo contendere after the court accepts the plea, but before it

imposes sentence if . . . the defendant can show a fair and just reason for requesting the

withdrawal.” A defendant who seeks to withdraw a guilty plea bears a “substantial

burden” of showing a fair and just reason for the withdrawal of his plea. Siddons, 660

F.3d at 703. As we have held, “[a] shift in defense tactics, a change of mind, or the fear

                                             3
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.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003) (citation and

quotation marks omitted). “We look to three factors to evaluate a motion to withdraw:

(1) whether the defendant asserts [his or] 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). An

assertion of innocence “must be buttressed by facts in the record that support a claimed

defense,” id. at 818, and a defendant must “give sufficient reasons explaining why

contradictory positions were taken before the district court.” Jones, 336 F.3d at 253

(quotation marks omitted).

       The District Court did not abuse its discretion when it denied Baird’s motion to

withdraw the guilty plea. As the Court noted, Baird was fully advised of his rights and

was told that if he did plead guilty, he was pleading guilty “for all time.” (App. 215.)

The Court found that Baird showed no confusion or misunderstanding of the guilty plea

proceedings and that he voluntarily entered a competent and knowing plea of guilty. In

seeking to withdraw the plea, Baird claimed he was innocent because his failure to book

the tours did not stem from criminal intent, but rather from poor business and accounting

skills; however, he advanced no evidence in support of his claim of innocence and

offered nothing to explain the contradictory position he took during the plea colloquy.

Moreover, because so many of his victims were elderly, there was “a real risk that key

                                             4
witnesses would pass away or memories would fail prior to trial,” see Siddons, 660 F.3d

at 703, resulting in prejudice to the government. Baird has failed to show a “fair and just

reason” justifying withdrawal of the plea.2

       B.     Appellate Waiver

       Appellate waivers, if entered into knowingly and voluntarily, are valid. United

States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). We “will decline to exercise our

jurisdiction to review the merits of an appeal where the defendant knowingly and

voluntarily waived the right to appeal.” United States v. Jackson, 523 F.3d 234, 242 (3d

Cir. 2008). We have recognized, however, that “‘[t]here may be an unusual circumstance

where an error amounting to a miscarriage of justice may invalidate the waiver,’ and in

such cases we will exercise our jurisdiction over a waived appeal.” Id. (quoting Khattak,

273 F.3d at 562). In evaluating whether a “miscarriage of justice” has occurred, we

consider factors including “the clarity of the error, its gravity, its character (e.g., whether

it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of

the error on the defendant, the impact of correcting the error on the government, and the

extent to which the defendant acquiesced in the result.” Khattak, 273 F.3d at 563

(quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)).

       The record demonstrates that Baird’s waiver of appeal was knowing and


2
 Baird argues that we should remand to the District Court for a new hearing on his
motion to withdraw because the Court failed to explicitly consider the three factors
enunciated in Brown. Given Baird’s failure to advance any reason much less any
evidence to support his motion, however, we reject his request for a remand without
further discussion.
                                           5
voluntary. The District Court conducted a thorough plea colloquy to ensure that he

understood each aspect of the plea agreement, including the waiver of his right to appeal.

Moreover, Baird does not seriously contend that his appeal of the within-Guidelines

sentence that did not exceed the statutory maximum falls within any of the limited

circumstances that would have preserved his right to appeal.

       In any event, Baird’s substantive arguments regarding his sentence lack merit.

While not disputing the amount of the loss, Baird argues that he should have received a

“credit” against that amount to account for the fact that some victims received some

compensation from third parties, compensation, we note, that was in no way attributable

to Baird. Moreover, the District Court did not take issue with the positive testimony it

received at the sentencing hearing from Baird’s wife, grandson, and friend. That

testimony, however, was simply not enough.

III.   Conclusion

       We will affirm the judgment of sentence.




                                             6
