NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 09-1078




                        THE UNITED STATES OF AMERICA

                                             v.

                                MOISES HERNANDEZ,
                                          Appellant




                    On Appeal from the United States District Court
                             for the District of New Jersey
                                   (D.C. No. 06-736)
                      District Judge: Honorable Robert B. Kugler




                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 16, 2010

 Before: SLOVITER, and HARDIMAN, Circuit Judges, and POLLAK,* District Judge


                                  (Filed:May 6, 2010)
                                         _____

                                       OPINION
                                         ______


      *
          Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge.

       This is an appeal from a conviction for conspiracy to possess with intent to

distribute crack cocaine in violation of 21 U.S.C. §§ 841, 846 and causing the death of

another person by using a firearm in furtherance of a drug trafficking offense, in violation

of 18 U.S.C. § 924. Defendant argues on appeal that: (1) the district court erred by

denying his motion to withdraw his guilty plea prior to sentencing; (2) the government

breached its plea agreement with him; (3) the government coerced him into accepting a

plea bargain and misled him; and (4) the district court erred by failing to award him a

three-point reduction for acceptance of responsibility. He seeks to withdraw his guilty

plea. We will affirm.

                                             I.

       Because we write for the parties, we recount only the essential facts. These

charges arise out of an investigation into drug trafficking in Camden, New Jersey. In late

June 2006, law enforcement officers intercepted and recorded conversations from the

mobile telephone of an individual named Cesar Severino. The substance of the phone

calls suggested that Severino had supplied defendant Moises Hernandez with crack

cocaine but that Hernandez had complained that the crack cocaine supplied was of poor

quality, leading Severino to promise to replace the drugs with higher quality material. On

July 8, 2006, Severino was shot and killed. Hernandez was identified as the perpetrator

by Edwin Saldivar, who was present when Severino was shot and who was also injured



                                           -1-
during the episode. Two eyewitnesses standing across the street at the time of the

shooting also identified Hernandez. Hernandez was arrested on July 13, 2006.

Subsequent to his arrest, Hernandez waived his rights under Miranda and confessed to

Drug Enforcement and Administration agents that he killed Severino in the heat of

passion after Severino slapped him. Hernandez also confessed to the New Jersey

Prosecutor’s Office and Camden Police Department in a separate interview.

       On October 25, 2006, the grand jury returned a 27-count indictment against

Hernandez and five co-defendants. After the district court denied Hernandez’s motion to

suppress, Hernandez entered into a plea agreement with the government on April 28,

2007. He agreed to plead guilty to conspiracy to possess with intent to distribute more

than 35, but less than 50, grams of crack cocaine in violation of 21 U.S.C. § 841

(b)(1)(C), 846, and causing the death of another person by using a firearm in furtherance

of a drug trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j), (2)

(Counts I and II of the superseding indictment). In exchange, the government agreed that,

if Hernandez complied with the terms of the plea agreement, it would recommend that the

court impose a prison sentence of 240 months, 120 months each on Counts I and II to be

served consecutively. On May 7, 2008, Hernandez pled guilty pursuant to the plea

agreement. The district court engaged in a plea colloquy to ensure that Hernandez’s plea

was voluntary and knowing. After finding that Hernandez was “competent, capable of

entering a knowing and intelligent plea” the court concluded that it was “satisfied that he



                                            -2-
is in fact guilty.”

       On November 18, 2008, Hernandez filed a motion to withdraw his guilty plea to

the offense of homicide. His motion was accompanied by an affidavit stating the

following: (1) he had not killed Cesar Severino; (2) he had only pled guilty because he

was afraid of receiving a life sentence; and (3) had he known that he would be indicted in

New Jersey state court for the intentional killing of Severino, he would not have pled

guilty in federal court. At a hearing on the motion conducted on December 12, 2008,

Hernandez’s counsel proffered additional evidence in the form of the following: (1) an

affidavit from Hernandez’s stepfather stating that he spoke to another individual who told

him that an individual known as “Carlito” had confessed to the murder; that this same

individual told him he had seen the weapon used in the murder; (2) a photograph

showing that “Carlito” and Hernandez have similar appearances; and (3) hearsay

information that additional individuals had identified “Carlito” as the murderer. When

Hernandez testified under oath at the hearing in support of his motion, he explained that

he pled guilty because he feared receiving a life sentence, that he was under the influence

of drugs and was physically abused by law enforcement officers at the time of his

confessions, and that he had not committed the murder. Hernandez also denied that

Severino was supplying him with drugs.

       The district court denied Hernandez’s motion to withdraw his guilty plea and

proceeded to sentence him. At sentencing, the government argued that Hernandez should



                                           -3-
receive a sentence within the guidelines–namely a sentence between 330 to 350

months–instead of the 240 months stipulated in the plea agreement. The court calculated

his Guideline Offense Level at 32 and Criminal History Category VI. Hernandez filed his

Notice of Appeal on December 22. Hernandez was sentenced to a 210 month period of

incarceration on Count I and 120 months on Count II, to be served consecutively, for a

total of 330 months. On December 30, Hernandez moved to correct his sentence pursuant

to Fed. Crim. P. 25. The district court denied that motion on January 30, 2009.

                                             II.

       We review the district court’s decision to deny Hernandez’s motion to withdraw

his guilty plea under the abuse of discretion standard. United States v. Jones, 336 F.3d

245, 252 (3d Cir. 2002). Once a defendant pleads guilty, he is not easily permitted to

withdraw that plea. United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001) (“Once

accepted, a guilty plea may not automatically be withdrawn at the defendant’s whim.”);

Gov’t of V.I. v. Berry, 631 F.2d 214, 220 (3d Cir. 1980) (“There is no absolute right to

withdraw a guilty plea, and the right to do so is within the sound discretion of the trial

court.”). The burden is on the defendant to show “any fair and just reason” for the court

to permit his plea to be withdrawn. F. R. Cr. P. 32(d). That burden is “substantial.”

Jones, 336 F.3d at 252. In deciding a motion to withdraw, the district court must consider

three factors: “(1) whether the defendant asserts her innocence; (2) whether the

government would be prejudiced by the withdrawal; and (3) the strength of the



                                            -4-
defendant’s reason to withdraw the plea.” Brown, 250 F.3d at 815.

       We find that the court did not abuse its discretion in denying Hernandez’s motion

to withdraw his guilty plea. The district court took note of, and evaluated, these three

factors when it considered Hernandez’s motion to withdraw his guilty plea. Although the

district court found that granting Hernandez’s motion would not prejudice the

government, it denied Hernandez’s motion on the ground that Hernandez had not

supported his assertion of innocence with facts in the record supporting a claim to a

defense, as required by Brown. Under our case law, Hernandez must present facts in the

record supporting his claim of innocence. Brown, 250 F.3d at 818 (“Bald assertions of

innocence, however, are insufficient to permit a defendant to withdraw her guilty plea.

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

defense.”) (citations and quotations omitted). In the district court’s view, the evidence

Hernandez presented was not necessarily inconsistent with his guilt. Since three

witnesses stated that two people were present at the shootings, “Carlito” could have been

the second person present. In fact, the court noted that when he confessed, Hernandez

never shared the identity of the second individual with the police. At the hearing on

Hernandez’s motion to withdraw his guilty plea, the court also found it significant that

Hernandez did not provide a credible alibi for his whereabouts during the murder, despite

direct questioning about the matter.

       In addition, the district court did not find credible Hernandez’s explanations for his



                                            -5-
three preceding confessions (referring to Hernandez’s confession to the Drug

Enforcement Administration, his confession to New Jersey Prosecutor’s Office and

Camden Police Department, and his guilty plea colloquy). Hernandez testified that he

pled guilty only to avoid a life sentence in federal court, and, had he known that he was

eventually also going to be indicted in state court for an offense carrying a life term of

imprisonment, he would not have pled guilty before the district court. He further

contended that the government told him there were no related cases, and that only after he

“accepted the plea” did he learn that he had been indicted in New Jersey state court.

However, when he testified in district court, Hernandez admitted that he was informed by

his counsel prior to pleading guilty that there was a state court complaint alleging that he

had murdered Severino. He also testified that counsel informed him that the maximum

sentence for that offense in New Jersey was a term of life imprisonment. Accordingly,

Hernandez’s argument is without merit and the district court did not abuse its discretion

in concluding that Hernandez had not met his “heavy burden” to withdraw his guilty plea.

       Hernandez’s second argument on appeal is that he should be permitted to withdraw

his guilty plea because the government breached the plea agreement by requesting that he

be sentenced to a term of incarceration within the applicable guideline range, rather than

requesting a lower sentence of 240 months, as stipulated in the plea agreement. Because

Hernandez did not raise this objection in the district court, we apply the plain-error test.

Puckett v. United States, --- U.S. ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009).



                                            -6-
Plain error review involves four steps:

       First, there must be an error or defect-some sort of [d]eviation from a legal
       rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively
       waived, by the appellant. Second, the legal error must be clear or obvious, rather
       than subject to reasonable dispute. Third, the error must have affected the
       appellant's substantial rights, which in the ordinary case means he must
       demonstrate that it affected the outcome of the district court proceedings. Fourth
       and finally, if the above three prongs are satisfied, the court of appeals has the
       discretion to remedy the error-discretion which ought to be exercised only if the
       error seriously affect[s] the fairness, integrity or public reputation of judicial
       proceedings.

Id. at 1429 (citations and quotations omitted).

       Contract principles guide our interpretation of the guilty plea agreement. United

States v. Schwartz, 511 F.3d 403, 405 (3d Cir. 2008). The government has “an obligation

to adhere strictly to the terms of the bargain it strikes with defendants.” Queensborough,

227 F.3d at 156 (citation omitted). The question for us is “whether the government's

conduct is consistent with the parties’ reasonable understanding of the agreement.” Id.

Thus, we begin by examining the relevant provisions of the plea agreement.

       The plea agreement provided that Hernandez would plead guilty to Count I and

Count II of the superseding indictment and “that neither party will argue for the

imposition of a sentence outside the Guidelines range that results from the agreed total

Guidelines offense level.” The agreement stipulated that Hernandez was a Career

Offender under U.S.S.G. § 4B1.1 and that the applicable Base Offense Level was 32.

However, the agreement provided for possible reductions in the offense level as follows:

       10. As of the date of this letter, Moises Hernandez has clearly demonstrated a

                                            -7-
       recognition and affirmative acceptance of personal responsibility for the offense
       charged. Therefore, a downward adjustment of 2 levels for acceptance of
       responsibility is appropriate if Moises Hernandez’s acceptance of responsibility
       continued through the date of sentencing. See U.S.S.G. § 3E1.1(a).


       11. . . . If Moises Hernandez enters a plea pursuant to this agreement and qualifies
       for a 2-point reduction for acceptance of responsibility pursuant to U.S.S.G. §
       3E1.1(a) and if in addition Moises Hernandez’ offense level under the Guidelines
       prior to the operation of U.S.S.G. § 3E1.1(a) is 16 or greater, [he] will be entitled
       to a further 1-point reduction in his offense level pursuant to U.S.S.G. § 3E1.1(b).

       12. . . . the parties agree that the total Guidelines offense level applicable to
       Moises Hernandez is 29 on Count I.

       14. The parties agree that Criminal History Category of VI applies in this case,
       and that the corresponding Sentence Guideline range is 151 to 188 months
       imprisonment on Count 1 and would be 262 months to 327 months on Count 2,
       however, since the underlying murder was an involuntary murder the range is
       capped at 120 months imprisonment, see 18 U.S.C. § 924(j)(2) . . . .

       15. The parties agree to recommend that the Court impose a prison sentence of 240
       months (that is 120 months on Count I and a consecutive 120 months on Count 2)
       and further agree that a prison sentence of 240 months is reasonable and
       appropriate.


The government contends that Hernandez’s motion to withdraw his guilty plea was a

breach of the plea agreement’s requirement that he continue to demonstrate acceptance of

responsibility through the date of the sentencing.

       We agree. In this case, it is clear that Hernandez vehemently maintained in his

affidavit and testimony that he was innocent of the murder. He stated in his affidavit

supporting his motion to withdraw his guilty plea that “‘I really didn’t do it.’ In other

words, despite my plea of guilty, I want the Court to know that I did not kill Cesar

                                             -8-
Severino.” There can be no other reading of this statement. By moving to withdraw his

guilty plea on the ground that he was factually and legally innocent of the murder of

Severino, Hernandez failed to demonstrate continued acceptance of responsibility. Under

these circumstances, the government acted properly when it asked for a sentence within

the guidelines range, rather than the sentence stipulated in the plea agreement.

       Hernandez’s third argument is that the government’s offer of a reduced sentence in

exchange for a guilty plea constituted coercion, and that the government lied or

intentionally misled him about information relating to state court proceedings against

Hernandez for Severino’s murder. As we discussed above, we find unpersuasive

Hernandez’s allegation that the government misled him. With regard to Hernandez’s

argument that he was coerced into pleading guilty, the allegation that the offer to

recommend a lower sentence pursuant to a guilty plea constitutes coercion is not

sufficient to undermine a guilty plea. See United States v. Sutton, 794 F.2d 1415, 1422

(9th Cir. 1986) (“[B]are allegation of coercion, presented before this court for the first

time, is not sufficient to set aside the plea of guilty on this direct appeal.”). There is

nothing inherently coercive about the government’s offer to recommend a substantially

lower sentence in exchange for a guilty plea. As the Supreme Court explained in

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), “[A]cceptance of the basic legitimacy

of plea bargaining necessarily implies rejection of any notion that a guilty plea is

involuntary in a constitutional sense simply because it is the end result of the bargaining



                                             -9-
process.” It is inherent that “the plea may have been induced by promises of a

recommendation of a lenient sentence or a reduction of charges, and thus by fear of the

possibility of a greater penalty upon conviction after a trial.” Id.

       Finally, Hernandez argues that the district court erred by failing to award him a

three-point reduction for acceptance of responsibility. He contends that he should receive

a reduction for acceptance of responsibility because he did not deny that he was guilty of

the drug trafficking offense contained in Count I–he sought only to withdraw his guilty

plea to the murder charge–and because the offense level calculation applied only to Count

I. Under the Guidelines, a two-level reduction in defendant’s base offense level is

permitted “[i]f the defendant clearly demonstrates a recognition and affirmative

acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1(a).1

Because the “sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility . . . the determination of the sentencing judge is entitled to

great deference on review and should not be disturbed unless it is without foundation.”

U.S.S.G. § 3E1.1 (commentary, note 5). Typically, the district court’s factual

determination that a defendant did not accept responsibility should be disturbed only if

clearly erroneous, United States v. Cianscewski, 894 F.2d 74, 83 (3d Cir.1990), but

because Hernandez did not preserve this claim, we review the issue for plain error, see


       1
                A one-level reduction is permitted only upon the government’s motion and
after the first two-point reduction has been awarded, and thus we do not review it here.
U.S.S.G. § 3E1.1(b).

                                            - 10 -
United States v. Cefaratti, 221 F.3d 502, 512 (3d Cir. 2000).

       During Hernandez’s guilty plea colloquy, he admitted under oath, in relevant part,

to the following: (1) he was responsible for distributing and possessing with intent to

distribute at least 35 grams but less than 50 grams of crack cocaine; (2) he knew an

individual named Cesar Severino; (3) between in or about May 2006 and July 2006,

Severino supplied him with crack cocaine; (4) on June 22, 2006 Severino supplied him

with approximately 28 grams of crack cocaine; (5) Hernandez sold some of that crack

cocaine in the area of 32nd and Pierce streets; (6) Severino had supplied with him poor-

quality crack cocaine; (7) Hernandez confronted Severino about the poor-quality cocaine

and Severino told him he would replace it; and (8) on July 8, 2006, Hernandez went to

Severino’s home to discuss the low-quality cocaine.

       On December 12, 2008, when he testified in support of his motion to withdraw his

guilty plea, Hernandez made the following statements under oath: (1) he was ready and

willing to take a 120-month plea for the role in the drug case “unless the government tries

to file some type of enhancements, 851s, career offenders or any type of penalty” in

which case he would move to withdraw his plea; (2) he never met Severino; (3) there

were phone calls between him and Severino; (4) he was attempting to buy drugs from

Severino by “trying to get with him and meeting him somewhere”; (5) he never succeeded

at meeting with Severino and thus Severino did not supply him with drugs; and (6) he

should be charged with attempting to buy drugs from Severino because there was no



                                           - 11 -
proof that he actually bought drugs from Severino.

       Thus, given the conflicting statements made by Hernandez, one cannot readily

conclude that, despite the fact that he did not move to withdraw his guilty plea to Count I,

Hernandez has accepted responsibility for the offense of conspiracy to distribute and

possess with intent to distribute cocaine. “A defendant seeking a reduction for

acceptance of responsibility bears the burden of establishing by a preponderance of the

evidence that he or she is entitled to the reduction.” United States v. Boone, 279 F.3d

163, 193 (3d Cir. 2002). We have previously held that this adjustment is available “if the

defendant clearly demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct.” Cianscewski, 894 F.2d at 83 (citing U.S.S.G. §

3E1.1(a)) (district court did not clearly err where record reflected that defendant refused

to cooperate with the probation officer during the preparation of the presentence report,

failed to show up for his original sentencing hearing, maintained through sentencing that

he was entrapped); United States v. DeLeon-Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995)

(acceptance of responsibility reduction properly denied because defendant was contesting

factual and legal guilt). At the hearing, Hernandez denied the key fact relating to the drug

trafficking offense–namely that Severino ever provided him with drugs. Instead, he

testified that he attempted to “get together” with Severino, but that, in fact, they never

engaged in any transactions. In light of this testimony, it would be hard to conclude that

Hernandez was in fact accepting responsibility for distributing and possessing with intent



                                            - 12 -
to distribute at least 35 grams, but less than 50 grams, of crack cocaine. Thus, the district

court did not clearly err in denying Hernandez a two-level reduction for acceptance of

responsibility.

                                            III.

       For these reasons, we will affirm the judgment of conviction and sentence




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