                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 15-2351
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                             AUGUSTINE DECRUZ,
                                     Appellant
                                _____________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                       District Court No. 3-11-cr-00199-001
                 District Judge: The Honorable A. Richard Caputo

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               February 29, 2016

         Before: SMITH, HARDIMAN, and SLOVITER, Circuit Judges

                              (Filed: March 16, 2016)
                             _____________________

                                   OPINION*
                             _____________________

SMITH, Circuit Judge.




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      A confidential informant (CI) advised a police officer in late January of

2011 that he could purchase cocaine from a man named Gus.             After the CI

contacted Gus by telephone, the police officer verified the CI was clean, provided

him money for a controlled buy, drove to Gus’s house, and watched as the CI

entered the rear of the house and then emerged four minutes later with a substance

that field tested positive for cocaine. In early February, the CI made a second

controlled buy from Gus while the same police officer again watched from his

vehicle. The purchased substance again field tested positive for cocaine.

      Thereafter, the police officer swore out an affidavit and obtained a search

warrant for Gus’s house. Execution of the search warrant found Augustine DeCruz

on the second floor in the hall, together with crack cocaine and two firearms, a

Rossi .38 caliber handgun and a Ruger P95 9 mm handgun. DeCruz was arrested

and detained. While DeCruz was incarcerated, his cellmate contacted the police to

advise that DeCruz had bragged that the search had failed to discover a firearm in

the basement and crack cocaine in folded laundry. Execution of a second search

warrant produced a Remington rifle and an additional 151.7 grams of crack

cocaine.

      In June of 2011, a grand jury returned a three-count indictment charging

DeCruz with possession with the intent to distribute 28 grams of a controlled

substance containing crack cocaine; possession of the Rossi, the Ruger and the

                                         2
Remington rifle in furtherance of a drug trafficking crime; and possession of a

firearm by an alien who was unlawfully in the United States. DeCruz filed a

pretrial motion seeking, inter alia, to suppress evidence seized during execution of

the two search warrants for lack of probable cause and to disclose the CI’s identity.

Alternatively, DeCruz sought a Franks hearing.1         The District Court denied

DeCruz’s motion in its entirety. Thereafter, pursuant to a written plea agreement,

DeCruz waived his right to prosecution by indictment and entered a guilty plea to a

two-count information charging him with possession with intent to distribute a

substance containing an unspecified quantity of cocaine base and possession of

only the Rossi and the Ruger handguns in furtherance of a drug trafficking offense.

        Thereafter, DeCruz, represented by new counsel, moved to withdraw his

guilty plea to the firearm offense. He asserted that his inability to read and write

English prevented him from fully understanding the consequences of his guilty

plea and that he was innocent of the “charge related to the gun.” A148. During a

hearing, DeCruz’s counsel admitted the crack cocaine was DeCruz’s, but asserted

that DeCruz wanted to proceed to trial on the firearm offense because it was owned

by someone else. The District Court denied DeCruz’s motion to withdraw his

guilty plea. Thereafter, the Court sentenced DeCruz to 46 months for the drug




1
    See Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
                                          3
trafficking offense and the 60 month mandatory minimum on the firearms offense

to be served consecutively.2

      On appeal, DeCruz contends the District Court erred in denying his pretrial

motion to suppress evidence, to disclose the CI’s identity, and to conduct a Franks

hearing. DeCruz also asserts that the District Court erred by denying his motion to

withdraw his guilty plea.3

      Given the police officer’s recitation in the affidavit of the circumstances

leading up to and immediately following each of the two controlled buys, we agree

with the District Court that the affidavit adequately established probable cause.

See Illinois v. Gates, 462 U.S. 213, 238 (1983) (reaffirming that the probable cause

determination requires consideration of the totality of the circumstances to


2
  DeCruz’s counsel failed to file an appeal as requested. DeCruz filed a timely
§ 2255 petition, asserting an ineffective assistance of counsel claim. Consistent
with a stipulation of the parties, the District Court ordered the reinstatement of
DeCruz’s direct appeal rights. This timely appeal followed. The District Court
had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C. §§ 2253(a) and 2255. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
3
  In reviewing the District Court’s denial of the motion to suppress, we conduct
clear error review of factual findings and plenary review of legal conclusions.
United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). The denial of a motion
to disclose the identity of a confidential informant is reviewed for an abuse of
discretion. United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002). We have
yet to determine the standard of review for the denial of a Franks hearing, but need
not resolve that standard here for reasons explained in the text. United States v.
Pavulak, 700 F.3d 651, 665-66 (3d Cir. 2012). The abuse of discretion standard
governs our review of the denial of DeCruz’s motion to withdraw his guilty plea.
United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).
                                         4
determine if “there is a fair probability that contraband or evidence of a crime will

be found in a particular place”). Because the probable cause determination for the

first search warrant depended upon the police officer’s observations and not the

CI’s report of what transpired in the house, the omission of the CI’s reliability and

criminal history were not material to the finding of probable cause. For that

reason, the District Court did not err in denying either the motion to conduct a

Franks hearing or to suppress the evidence. In light of the criminal offenses

charged in the indictment, there was no need to reveal the identity of the CI, whose

earlier involvement in the controlled buys would not refute DeCruz’s possession

on the day of the initial search and seizure of the crack and the handguns.

      Nor are we persuaded that the District Court abused its discretion in denying

DeCruz’s motion to withdraw his guilty plea. In ruling on a motion to withdraw a

plea, the 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.” United

States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). The District Court appropriately

considered these factors. It noted that DeCruz did not assert his innocence as to

the drug charge and that his alleged innocence on the firearms offense was based

on his own uncorroborated statement that someone else owned the firearm

(singular). See A148, 161. Notwithstanding DeCruz’s illiteracy, the District Court

                                          5
reasoned that DeCruz’s active participation in the plea proceeding and solemn

admission of guilt to the elements of each offense made DeCruz’s subsequent

reason for withdrawing his plea “appear[]” to be “a change of heart,” which did not

warrant granting the motion. A174.

      DeCruz’s contention that he did not understand the plea proceeding and that

his plea was involuntary is belied by the transcript of the plea colloquy. The

transcript showed that DeCruz was fully engaged in the proceeding, asking

questions and raising his concerns.    Moreover, his responses showed that he

understood the significance of the information that had “dropped” not only a count

from the indictment, but also the averment that the Remington rifle was used in

furtherance of drug trafficking. DeCruz made clear that he was pleading guilty

solely to possession of what was seized in the first search and affirmed he

understood the plea agreement. When DeCruz raised concerns about sentencing

and was ready to change his mind about pleading guilty, the hearing was continued

only after DeCruz agreed that he decided to go forward with pleading guilty. The

Court then ensured that DeCruz understood his sentencing exposure, the

mandatory minimum and the fact that the law required one sentence to get “tacked

on to the other.” DeCruz said he understood these sentencing considerations and

had no hesitation when he pleaded guilty to each count. These circumstances




                                        6
support the District Court’s finding that DeCruz had a “change of heart,” which did

not justify granting the motion to withdraw his guilty plea.

         For the above stated reasons, we will affirm the judgment of the District

Court.




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