                                                   NOT PRECEDENTIAL


 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                             ________

                            No. 10-1609
                            _________


                 UNITED STATES OF AMERICA

                                 v.

                       SHERMAN HOUSER
                      a/k/a Jermaine McKelly

                       SHERMAN HOUSER,
                                  Appellant
                           ________

           On Appeal from the United States District Court
                    for the District of New Jersey
                    (D.C. No. 3-07-cr-00525-003)
             District Judge: Honorable Mary L. Cooper
                               _______

             Submitted Under Third Circuit LAR 34.1(a)
                        December 13, 2010

Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges

                         (Filed: 12/20/2010)
                               ______

                             OPINION
                              ______




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SLOVITER, Circuit Judge.

                                           I.

       Appellant Sherman Houser pled guilty to conspiracy to distribute and possess with

intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), 846, and one count of aiding and abetting the possession with intent to

distribute 100 grams or more of heroin, in violation of § 841(a)(1), (b)(1)(B), and 18

U.S.C. § 2.

       Early in the case, Houser’s defense counsel, Bruce Throckmorton, filed a notice of

eight pre-trial motions to be filed. Eventually, differences arose between Houser and

counsel, and Houser requested substitute counsel, which the District Court granted.

During his plea colloquy, Houser admitted his guilt. Approximately a year thereafter,

Houser filed a motion to withdraw his guilty plea, alleging that he misunderstood the

consequences of the guilty plea. Specifically, Houser claimed to believe that his

previously filed motions would still be decided after his guilty plea, referring specifically

to his motion for dismissal based on speedy trial grounds and a motion to suppress certain

evidence obtained through a wiretap and a search warrant.

       He argued that because he did not fully understand the consequences of the guilty

plea, he did not knowingly and voluntarily enter into it. The District Court held a hearing

on the motion, and rejected the motion after careful consideration of the record and

testimony from both Houser and Throckmorton about their meetings and discussions.




                                                2
Houser was sentenced to a total of 228 months in prison with four years supervised

release. He now appeals the denial of his motion to withdraw his guilty plea. 1

                                            II.

       We review the denial of a motion to withdraw a guilty plea for abuse of discretion.

United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). A defendant may withdraw a

court-accepted guilty plea if “the defendant can show a fair and just reason for requesting

the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The guilty plea cannot be withdrawn on a

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

       This court considers three factors when examining a motion to withdraw a guilty

plea: “(1) whether the defendant asserts his innocence; (2) whether the government

would be prejudiced by his withdrawal; and (3) the strength of the defendant’s reason to

withdraw the plea.” Huff, 873 F.2d at 712. Defendants who move to withdraw their

guilty pleas must offer facts to show why they initially pled guilty, and why they now

assert innocence. United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). “Bald

assertions of innocence are insufficient to permit a defendant to withdraw his guilty

plea.” Jones, 336 F.3d at 252.

       Houser argues that the District Court applied the wrong legal standard to his

motion to withdraw his guilty plea. We review this question of law de novo. See United

States v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994). Houser contends that instead of using the

three-part test described above applicable to defendants who moved to withdraw their


   1
     The District Court had jurisdiction under 18 U.S.C. § 3231. This court has
   jurisdiction under 28 U.S.C. § 1291.
                                             3
guilty pleas prior to sentencing, the Court used a standard reserved for motions brought

after sentencing. He argues that the Court erred in relying upon United States v. Crusco,

536 F.2d 21 (3d Cir. 1976), for this purpose.

         We disagree. The District Court relied upon Crusco to help resolve the

reasonableness of Houser’s misunderstanding of guilty plea consequences and, from

there, to determine the strength of Houser’s reason to withdraw his guilty plea. Houser

states that: “[t]he heart of [his] motion is his ignorance of the consequences of his plea,

and its consequent lack of voluntariness.” Appellant’s Br. at 21. In Crusco, we stated:

“[w]here the record shows that ‘circumstances as they existed at the time of the guilty

plea, judged by objective standards, reasonably justified his mistaken impression,’ a

defendant must be held to have entered his plea without full knowledge of the

consequences and involuntarily.” 536 F.2d at 24, citing Mosher v. Lavallee, 491 F.2d

1346, 1348 (2d Cir. 1974). It follows that the District Court was required to consider the

reasonableness of Houser’s misapprehension to evaluate his reason for withdrawal. The

District Court applied the appropriate legal standard.

         Houser fails the first part of the test because he never asserted his innocence, as he

acknowledges: “Admittedly, defendant does not assert his innocence.” Appellant’s Br.

at 19.

         Second, the District Court concluded that the withdrawal of his guilty plea would

prejudice the government because of the time that had elapsed since Houser’s arrest.

Houser moved to withdraw his guilty plea over a year after he pled guilty, and over two

years after the time of his offenses. Given the time that elapsed between his guilty plea

                                                4
and motion to withdraw that plea, the District Court did not abuse its discretion in finding

prejudice.

       Third, Houser’s reasons for withdrawal of his plea relate to his alleged

misapprehension of the consequences resulting from that plea, and his assertion of not

knowingly and voluntarily entering into it. Houser claims that his ignorance of the

consequences was objectively reasonable because he lacked education and knowledge of

the legal system, repeatedly asserted his desire to have his motions heard, rejected two

plea agreements at least in part because of said motions, and alleged that the District

Court and his attorney both failed to tell him that a guilty plea meant his motions would

go unanswered.

       Houser fails this part of the test as well. The District Court considered his

arguments and, using the appropriate standard from Crusco, concluded that Houser’s

misunderstanding was unreasonable. Houser repeatedly acknowledged his understanding

of the proceedings and what a guilty plea meant, including that he gave up his right to a

jury trial by pleading guilty. Although the District Court did not mention the effect

Houser’s guilty plea would have on his pretrial motions, it was unreasonable for Houser

to infer that those motions would remain relevant; they dealt with trial-related matters

and a guilty plea meant no trial would take place. Additionally, the District Court cited

Throckmorton’s notes and testimony to support the argument that Houser recognized that

a guilty plea meant waiver of pretrial motions.




                                              5
       Based on the evidence presented, the District Court determined that Houser’s

belief that his motions would remain at issue after a guilty plea was unreasonable. The

District Court did not abuse its discretion in concluding that Houser’s guilty plea was not

unknowing or involuntary.

                                          III.

       For the foregoing reasons, we will affirm the District Court’s denial of Houser’s

motion to withdraw his guilty plea.




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