                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-1293
                                  _____________

                         UNITED STATES OF AMERICA

                                          v.

                            SALAHUDIN SHAHEED,
                                 Appellant


                 On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       District Court No. 2-15-cr-00187-002
                 District Judge: The Honorable Harvey Bartle, III

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                April 24, 2017

      Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit Judges

                               (Filed: May 5, 2017)
                             _____________________

                                    OPINION*
                             _____________________

SMITH, Chief Judge




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      The defendant, Salahudin Shaheed, appeals the denial of his motion to

withdraw his guilty plea. Shaheed pled guilty at the beginning of his trial shortly

after the second of his two codefendants pled guilty. He pled guilty to one count

each of (1) conspiracy to commit Hobbs Act robbery, (2) attempted Hobbs Act

robbery, and (3) federal kidnapping. More than two months after he pled guilty,

but before his sentencing, Shaheed filed a pro se motion to withdraw his guilty

plea. The District Court appointed new counsel for Shaheed and held a two-day

evidentiary hearing on his motion. Following the hearing, the District Court

denied the motion. Shortly thereafter, the District Court sentenced Shaheed to 240

months’ imprisonment on the first two counts and 365 months’ imprisonment on

the third count, each sentence to be served concurrently. Because Shaheed has

failed to sufficiently demonstrate entitlement to withdrawal of his guilty plea, we

will affirm.

                                          I

      The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

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

discretion. See United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). We



                                          2
review the District Court’s findings of fact related to the motion for clear error.

See United States v. Martinez, 785 F.2d 111, 113 n.1 (3d Cir. 1986).

                                          II

      “[W]ithdrawal of a guilty plea is not an absolute right,” United States v.

Wilson, 429 F.3d 455, 458 (3d Cir. 2005), and so a “defendant is not entitled to

withdraw [a] plea simply at his whim,” United States v. Jones, 336 F.3d 245, 252

(3d Cir. 2003). Rather, under Rule 11(d)(2)(B) of the Federal Rules of Criminal

Procedure, “[a] defendant may withdraw a plea of guilty . . . 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.” The defendant has the burden of

showing a fair and just reason for withdrawal of his guilty plea, and that burden is

“substantial.” Jones, 336 F.3d at 252. To determine whether a defendant has

made that requisite showing, a district court must consider three factors:

“(1) whether the defendant asserts his innocence; (2) the strength of the

defendant’s reasons for withdrawing the plea; and (3) whether the government

would be prejudiced by the withdrawal.” Id.

      Shaheed directs his arguments at each of those three factors. First, as to his

innocence, he claims he asserted and has demonstrated his innocence. Second,

regarding the strength of his reasons for withdrawing his plea, Shaheed argues that

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his trial counsel misled him into believing he could raise disputed factual matters

at his sentencing; he was under duress when he pled guilty because he lacked

glasses; his trial counsel told him that his mother wanted him to plead guilty; and

someone had threatened his sister that she would be killed if he did not plead

guilty. Third, as to prejudice, Shaheed contends that the Government has not

shown it would be prejudiced by the plea withdrawal. Those arguments fail to

make an adequate showing that Shaheed should have been permitted to withdraw

his guilty plea.

      First, Shaheed “did not meaningfully reassert his innocence” after pleading

guilty. Id. at 253. “Bald assertions of innocence are insufficient to permit a

defendant to withdraw his guilty plea.” Id. at 252; see also United States v.

Brown, 250 F.3d 811, 818 (3d Cir. 2001) (“Assertions of innocence must be

buttressed by facts in the record that support a claimed defense.” (quoting United

States v. Salgado-Ocampo, 159 F.3d 322, 326 (7th Cir. 1998))). In his initial

motion to withdraw his plea, Shaheed made no assertion of innocence. Only after

reviewing the Government’s response to his motion, in which the Government

noted that Shaheed failed to reassert innocence, did Shaheed claim his innocence.

Shaheed now argues that the lack of DNA or fingerprint evidence demonstrates his

innocence. He also points out that none of the victim’s descriptions of the

                                          4
perpetrators resembled him. The lack of DNA or fingerprint evidence does not

meaningfully suggest Shaheed’s innocence; many criminal cases have no such

evidence. Nor does the misdescription of the perpetrators meaningfully support

Shaheed’s assertion of innocence, given that the victim was bound and blindfolded

and her assailants wore masks. Shaheed also faced significant evidence of guilt,

including his purchase of the Taser that was used on the victim and inculpating

testimony from at least one of his codefendants who had already pled guilty.

Shaheed says nothing to cast doubt on this substantial evidence. We therefore

conclude that Shaheed failed to demonstrate that the first Jones factor supports his

motion. See Martinez, 785 F.2d at 113 n.1 (noting that the “weight of a

defendant’s assertions . . . are preeminently issues for the hearing Court to decide”

(alteration in original) (quoting Gov’t of V.I. v. Berry, 631 F.2d 214, 220 (3d Cir.

1980))).

      Second, Shaheed’s reasons for withdrawing his plea are unpersuasive. He

makes four arguments as to this second Jones factor.

      He first contends that his trial counsel told him that he would be able to

raise disputed matters at his sentencing hearing. The District Court did not clearly

err in rejecting that contention. Trial counsel was an experienced federal criminal

attorney. When directly asked by the District Court at the withdrawal motion

                                          5
hearing whether he ever advised Shaheed that “he was to defer any objections or

any comments with respect to the guilty plea until right before sentencing,”

Shaheed’s trial counsel adamantly responded that he had not and recalled

explaining to Shaheed that there “was no going back” if he pled guilty. JA506.

Shaheed points to nothing in the record to undermine that assertion, and the

District Court consequently made no clear error in crediting trial counsel’s

testimony.

      Shaheed next claims that he did not have his glasses to read his guilty plea

and that his trial counsel spoke too softly to him when reading him the plea.

Shaheed, though, did not raise these issues before the District Court at his plea

colloquy. The District Court specifically asked Shaheed whether he understood

the guilty plea document, and he said that he did. Moreover, his trial counsel

testified that, when he read Shaheed the guilty plea, Shaheed heard him and

understood what he was saying. The District Court did not find Shaheed’s

assertion to the contrary to be credible. The District Court did not err.

      Shaheed also asserts that his trial counsel told him that his mother wanted

him to plead guilty when she purportedly did not. Trial counsel, however,

received a text message from Shaheed’s mother the night before Shaheed pled

guilty stating that she had spoken with Shaheed and that he should “take” the

                                          6
guilty plea. JA228. And even if his mother did not want him to plead guilty, it

cannot be ignored that Shaheed was thirty-four years old at the time of the plea, is

intelligent, and was a business owner. He cannot blame his mother’s wishes,

whether genuine or not, for his decision to plead guilty. This is hardly the stuff of

genuine duress.

      Finally, Shaheed argues that his sister was threatened that she would be

killed if he did not plead guilty. The District Court concluded that no threat

occurred, and, even if it did, it did not influence Shaheed’s decision. The

circumstances surrounding the threat support the District Court’s conclusion about

the veracity of Shaheed’s claim. Shaheed did not explain why anyone would make

such a threat. The first threat, which allegedly occurred a day before Shaheed pled

guilty, was not reported to police until almost a week after Shaheed had pled

guilty, and the purported police report concerning the threat was never submitted

into evidence. Shaheed’s sister refused to cooperate with the FBI in investigating

the alleged threat. She also claimed that she received a second threat after

Shaheed had already pled guilty, undermining the claimed reason for the supposed

threat. For his own part, Shaheed never told his trial counsel about the threat.

Shaheed also failed to satisfactorily explain why he explicitly stated at his change

of plea hearing that no one made a threat to induce him to plead if this threat did

                                          7
actually occur. See Siddons, 660 F.3d at 703 (“[A] defendant must also ‘give

sufficient reasons to explain why contradictory positions were taken before the

district court.’” (quoting Jones, 336 F.3d at 253)). Even if the threat before

Shaheed pled guilty occurred, Shaheed claims that his mother’s whispered

statement in court, telling him no more than “somebody has threatened [your

sister] over this,” put him under such duress that he pled guilty the next day.

JA254. Yet, despite having the opportunity to follow up with his mother the night

she told him of the threat, he and his mother made no mention of the threat during

their multiple telephone conversations. Thus, given his complete lack of

knowledge about the circumstances of the threat, the record fails to show that any

purported threat influenced Shaheed to plead guilty to multiple federal crimes.

The District Court therefore did not err in rejecting Shaheed’s argument that a

threat to his sister caused him to plead guilty.

      Third, contrary to Shaheed’s assertion, the District Court correctly found

that the Government would be prejudiced by the withdrawal of his guilty plea. See

Jones, 336 F.3d at 252 (stating that the third factor in assessing a guilty plea

withdrawal is the Government’s prejudice but noting that “the Government need

not show such prejudice when a defendant has failed to demonstrate that the other

factors support a withdrawal of the plea”). In particular, the Government “would

                                           8
have an extremely difficult task to call [the victim] as a witness without causing

her a severe emotional setback, even assuming that she would be able to testify.”

JA18. The District Court found that the victim, who had been “beaten, bound,

gagged, . . . blindfolded,” and “subject to the use of a Taser,” had been attempting

to “put her life together” following Shaheed’s guilty plea. Id. The Government

would, of course, also have to arrange again for other civilian and law enforcement

witnesses after already making those preparations once. Under these

circumstances, we cannot say that the District Court’s finding of prejudice is

clearly erroneous.

                                         III

      For the reasons stated above, we will affirm the District Court’s denial of

Shaheed’s motion to withdraw his guilty plea.




                                          9
