                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit

                                                                                 AUG 30 2001
                         UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                           PATRICK FISHER
                                                                                      Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 99-3371
                                                     (D.C. No. 98-CR-40074-SAC)
 ANDREW B. ROWZER,                                        (District of Kansas)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY,
Circuit Judge.



       This case was scheduled for oral argument on May 18, 2001. However, on May

10, 2001, the panel to which the case had been assigned for oral argument determined that

oral argument was not needed, and ordered the case submitted on the briefs.

       On August 5, 1998, Andrew B. Rowzer (“Rowzer”) was charged in a one-count

indictment filed in the United States District Court for the District of Kansas with being a



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
felon in possession of 11 different firearms in and affecting interstate commerce, in

violation of 18 U.S.C. § 922(g). Rowzer retained one Jerold E. Berger (“Berger”) to

represent him and he pleaded not guilty to the charge. Rowzer was placed on pre-trial

supervised release, and, while on release, tested positive for the use of controlled

substances, absconded from his supervised release and was a fugitive for some three

months. He was apprehended on April 13, 1999, and his case was set for trial on June 15,

1999.

        On June 15, 1999, a two-count superseding information was filed (Rowzer waived

indictment) charging him in Count 2 thereof with the same offense charged in the

indictment, i.e., a felon possessing firearms. In Count 1 of the superseding information,

Rowzer was charged with money laundering in violation of 18 U.S.C. § 1957.

Specifically, he was charged with purchasing a motorcycle which had a value of more

than $10,000.00 from Davis Cycle in Topeka, Kansas, with monies he had obtained in

unlawful drug distribution transactions. On that same date, as a jury was about to be

selected to try his case, Rowzer and the government entered into a plea agreement

whereby Rowzer, after a hearing, was allowed to plead guilty to both counts of the

superseding information. The government, in return, promised, inter alia, that it would

not prosecute Rowzer for other criminal offenses known to it at the time of the plea

agreement, which precluded the government from prosecuting Rowzer for any drug

trafficking or other money laundering charges then known to the government. At the


                                            -2-
conclusion of this hearing, the district court ordered a Pre-Sentence Investigation Report

(PSIR) and set the matter for sentencing on September 17, 1999. A PSIR was prepared

on August 6, 1999, and on August 11, 1999, the United States Probation Office submitted

a completed PSIR to counsel, Rowzer by that time having discharged the attorney who

represented him when he pled guilty to the two-count superseding information, Berger,

and having retained new counsel, Mark L. Bennett, Jr. (“Bennett”). The PSIR set

Rowzer’s total offense level at 29 and his criminal history category at III, which called for

a sentencing range of 108 to 120 months.

       Backtracking, on August 4, 1999, Rowzer filed with the district court a pro se

motion to dismiss Berger as his attorney and allow him time to retain “competent new

legal counsel.” On August 18, 1999, Rowzer’s new counsel, Bennett, entered his

appearance for Rowzer. On August 20, 1999, Bennett, on behalf of Rowzer, filed a

motion to withdraw and set aside the pleas of guilty previously entered. On November

16, 1999, after hearing, the district court denied Rowzer’s motion to withdraw and set

aside his guilty pleas and reset the sentencing date to January 21, 2000.

       On December 9, 1999, Bennett, on behalf of Rowzer, filed objections to the PSIR.

The government filed a response to Rowzer’s objections on March 31, 2000, as well as

some objections of its own. On May 30 and 31, 2000, the district court held hearings on

the objections to the PSIR, at which time it heard testimony presented by both parties and

then took the matter under advisement. On August 1, 2000, the district court ruled on the


                                            -3-
various objections to the PSIR and on August 8, 2000, the district court sentenced Rowzer

to imprisonment for 108 months on each of the two counts in the superseding

information, sentences to be served concurrently. Rowzer appeals. We affirm.

       On appeal, counsel raises three issues: (1) did the district court err in denying

Rowzer’s motion to withdraw and set aside his guilty pleas; (2) did the district court err in

holding that Rowzer was not entitled to any reduction in his offense level for his

“acceptance of responsibility” pursuant to U.S.S.G. § 3 E1.1; and (3) whether the district

court erred in enhancing Rowzer’s offense level by three levels because of “relevant

conduct” pursuant to U.S.S.G. §§ 2S1.2(b)(2) and 2S1.1(b)(2)(D).

       As indicated, counsel first argues that the district court erred in denying Rowzer’s

motion to withdraw and set aside his guilty pleas to the two-count superseding

information. On June 15, 1999, Rowzer filed his petition to plead guilty to the two counts

in the superseding information, which was filed on the same date, indicating, of course,

that negotiations between the government and Rowzer’s retained counsel, Berger, had

been going on prior thereto. Our reading of the transcript of proceedings at the June 15,

1999, hearing where Rowzer pled guilty to the two-count superseding information

indicates that there was full compliance with Fed. R. Crim. P. 11(e).

       On August 20, 1999, Bennett, newly retained counsel for Rowzer, filed a motion

to withdraw and set aside the guilty pleas entered on June 15, 1999, which motion was

supported by lengthy memoranda. On October 5, 1999, the government filed a response


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to Rowzer’s motion to withdraw his guilty pleas supported by an equally lengthy

memorandum, in which the government asked that Rowzer’s motion to withdraw his

pleas of guilty be denied. A hearing was held on November 9, 1999, by the district court

on Rowzer’s motion to withdraw his guilty pleas, at which time Rowzer was questioned

in great detail by Bennett and cross-examined at length by government counsel. At the

conclusion of that hearing, the district court took the matter under advisement.

       On November 16, 1999, the district court denied Rowzer’s motion to withdraw and

set aside his guilty pleas theretofore entered on June 15, 1999. In support of its denial of

Rowzer’s motion, the district court filed a 34-page memorandum and order in which it

discussed in detail all of the reasons advanced by counsel for withdrawal of Rowzer’s

guilty pleas and concluded that none, nor any combination thereof, justified a withdrawal

of Rowzer’s guilty pleas.

       On appeal, it is agreed that we review the district court’s denial order by an abuse

of discretion standard.1 We find no such abuse of discretion. United States v. Jones, 168

F.3d 1217 (10th Cir. 1999), cert. denied, 121 S.Ct. 641 (2000). In that case, we spoke as

follows:

                      Under Fed. R. Crim. P. 32(e), the district court may
              allow a defendant to withdraw a plea of guilty before sentence
              is imposed if the defendant provides the court with a fair and
              just reason for doing so. We review the district court’s denial


       1
        An “abuse of discretion” occurs when a judicial determination is arbitrary,
capricious or whimsical. United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987).

                                            -5-
              of a motion to withdraw a guilty plea for an abuse of
              discretion.
              United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996).
              Although it is within the sound discretion of the district court
              to determine what circumstances justify granting a motion to
              withdraw a guilty plea, such motions should be “freely
              allowed, viewed with favor, treated with liberality, and given
              a great deal of latitude.” Id. We will not reverse the district
              court unless Defendant can demonstrate that the district court
              abused its discretion by acting unjustly or unfairly. Id. In
              determining whether a defendant has carried this burden, we
              consider the following factors: (1) whether the defendant has
              asserted his innocence; (2) prejudice to the government; (3)
              delay in filing defendant’s motion; (4) inconvenience to the
              court; (5) defendant’s assistance of counsel; (6) whether the
              plea was knowing and voluntary; and (7) waste of judicial
              resources. United States v. Gordon, 4 F.3d 1567, 1572 (10th
              Cir. 1993).

Jones, 168 F.3d at 1219.

       On December 9, 1999, counsel filed a plethora of objections to the PSIR.

Included therein were objections to the Probation Department’s recommendation that

Rowzer not be given a reduction in his offense level because of acceptance of

responsibility as permitted by U.S.S.G. § 3E1.1.2 Also, counsel objected to the Probation

Department’s recommendation that Rowzer’s base offense level be increased by five



       2
         In that particular objection counsel suggested that, since Rowzer, pursuant to the
plea agreement, had pled guilty to both counts in the superseding information, he was
entitled to a reduction in his offense level for acceptance of responsibility even though he
later attempted to withdraw his pleas on the grounds he wasn’t guilty. In this connection,
U.S.S.G. § 3E1.1, cmt. n.3, provides, inter alia, that a defendant who pleads guilty is not
entitled to an acceptance of responsibility reduction as a “matter of right.” United States
v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996).

                                            -6-
levels for “relevant conduct” pursuant to U.S.S.G. §§ 2S1.2(b)(2) and 2S1.1(b)(2)(D). As

earlier indicated, the government also had some objections to the PSIR.

       On May 30 and 31, 2000, the district court held hearings on the various objections

to the PSIR, at which hearings the government called three witnesses, and Rowzer called

one. (Not himself.) On August 1, 2000, the district court ruled on Rowzer’s various

objections to the PSIR in a written memorandum consisting of 28 pages and thereafter

sentenced Rowzer to imprisonment for 108 months on each of the two counts in the

superseding information, to be served concurrently. In that memorandum, after reviewing

all the so-called “pros and cons,” the district court overruled Rowzer’s objection that he

be allowed a reduction in his offense level because of his “acceptance of responsibility”

under U.S.S.G. § 3E1.1. At the same time, the district court overruled the objection to the

Probation Department’s recommendation that Rowzer’s offense level be raised for

“relevant conduct” under U.S.S.G. 2S1.2(b)(2) and 2S1.1(b)(2)(D) based on drug sales to,

and from, Rowzer. (Actually, the PSIR recommended a five level enhancement of

Rowzer’s offense level, and the district court only enhanced it by three.)

        “Factual determinations” made by a district court in a case involving the

application of the sentencing guidelines are reviewed under a clearly erroneous standard

and we will not disturb such findings unless, after reviewing all the evidence, such

findings have “no support in the record or . . . we are firmly convinced that an error has

been made.” United States v. Becker, 230 F.3d 1224, 1235 (10th Cir.), cert. denied, 121


                                            -7-
S.Ct. 1666 (2000). See also, United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.

1997), cert. denied, 522 U.S. 1063 (1998), where we said that “[w]e review the district

court’s ‘acceptance of responsibility’ determination as a question of fact subject to the

clearly erroneous standard.” In our view, the district court, in denying Rowzer’s request

that he be allowed a reduction in his offense level because of his “acceptance of

responsibility” and enhancing Rowzer’s offense level because of “relevant conduct,” was

not clearly erroneous.3 Rowzer was obviously a major player in a wide scale drug

distribution in the Topeka, Kansas area.

       In sum, we are in complete accord with the district court’s order denying Rowzer’s

motion to withdraw and set aside his guilty pleas and the district court’s ruling on

Rowzer’s various objections to the PSIR. The district court in both orders carefully

considered all of Rowzer’s contentions and the district court neither abused its discretion

nor was it clearly erroneous.

       Judgment affirmed.

                                                  Entered for the Court,

                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




       In United States v. Washington, 11 F.3d 1510, 1515 (10th Cir. 1993), cert. denied,
       3

511 U.S. 1020 (1994), we said that “We review the district court’s finding of fact
regarding drug quantities for clear error.”

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