                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 11, 2016
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                     No. 15-2074

 HIRAM MARCELENO,

       Defendant - Appellant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. No. 2:13-CR-03760-MCA-1)


Gregory M. Acton, Albuquerque, New Mexico, for Defendant-Appellant.

William J. Pflugrath, Assistant United States Attorney (Damon P. Martinez,
United States Attorney, with him on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.


Before KELLY, BRISCOE and HARTZ, Circuit Judges.


BRISCOE, Circuit Judge.


      Hiram Marceleno pleaded guilty to one count of reentry of a removed alien,

in violation of 8 U.S.C. § 1326(a) and (b). In this direct appeal, Marceleno

claims the district court erred by denying his request to withdraw his guilty plea
pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      Marceleno was born in Mexico and is not a United States citizen. After

more than thirty years in the United States, he was deported to Mexico in 2013,

only to reenter the United States shortly thereafter. As to the events that led to

his reentry, Marceleno testified to the following facts at an evidentiary hearing on

his motion to withdraw his guilty plea. When he arrived in Mexico following his

deportation, he set out to complete the community service remaining as part of his

supervised release for an unrelated prior misdemeanor offense. His probation

officer confirmed that Marceleno indeed contacted her to arrange continued

supervision in order to complete this service. While in Juarez, a man approached

Marceleno with what Marceleno understood as an offer to help him complete his

community service in exchange for payment. Marceleno testified that he

accompanied this unidentified man to a house in the mountains near Juarez, in

which several other individuals were staying. Instead of completing his

community service, Marceleno found himself involved with a group of human

traffickers. 1 He testified that he was compelled to work as a decoy in border-



      1
       The briefs and the record also refer to these individuals interchangeably
as “coyotes,” “guides,” “guerrillos,” or as members of an “alien smuggling
organization” or ASO.

                                          2
crossing operations, carrying a ladder to the border fence, and “touch[ing] . . . the

fence with the ladder” in an effort to distract Border Patrol agents. II ROA at

120.

       Marceleno testified that after several days of this decoy work, three of the

smugglers escorted him and two other individuals on a nighttime trek that,

Marceleno now understands, led him across an open portion of the border into the

United States. About a quarter of the way into the journey, he told his escorts

that he could not continue because of his poor health. One of the smugglers then

threatened to stab him if he did not continue, and that he would be found

“somewhere out there.” Id. at 124–30, 168–71. Marceleno admits that this threat

was not repeated and that he did not see any weapons, or witness similar violence

against other individuals during his time with the smugglers. Marceleno

nonetheless took the threat seriously and pressed on. He eventually collapsed

near an industrial facility about 200 yards inside the United States, although he

claims he did not know he was in the United States at the time. He testified that

at least one of the smugglers accompanied him into United States territory, and

was with him until shortly before he collapsed. Marceleno testified that, as a

result, he was found in the United States without any intention of being there, and

that he reentered the United States under duress.

       The government’s evidence tells a different story. At the same hearing on

Marceleno’s motion to withdraw his guilty plea, the government presented

                                          3
testimony that although alien smuggling organizations do use decoys to distract

agents at the border fence, they are typically pre-teens and teenagers.

Additionally, Border Patrol Agent Antonio Molina, who discovered the collapsed

Marceleno, testified that, although Molina could not specifically remember the

events from that day, his incident report indicates that there was only a single set

of footprints leading north from the border to where Marceleno was found. It is

undisputed that when Agent Molina found Marceleno and questioned him

regarding his destination, he replied “Fort Worth, Texas.” Id. at 146–47.

Marceleno contends that, because of exhaustion and confusion, he thought Agent

Molina was asking where he was from, not where he was headed. After being

taken to a Border Patrol station, Marceleno was again interviewed, this time by

Agent Kevin McIlwee. Marceleno again stated he was headed to Fort Worth, but

contends now that he was still confused about the question. Marceleno does not

dispute that he did not tell either Agent Molina or Agent McIlwee that he crossed

the border under duress. When the agents asked if Marceleno feared returning to

Mexico, he said he did not.

      Marceleno initially pleaded not guilty to the charge of reentry of a removed

alien, but changed his plea after consultation with counsel. According to

Marceleno’s counsel, Marceleno stated “that he had been forced” to reenter the

United States. Aplt. Br. at 13. In response, counsel advised Marceleno that

duress “is almost never a viable defense because there is almost always someplace

                                          4
else to go other than the United States,” and counsel did not seek further details

on the circumstances of Marceleno’s reentry. Id. During his guilty plea colloquy,

Marceleno confirmed that he understood the charge against him and the trial

rights he was waiving, that he had a full opportunity to consult with his attorney

and was satisfied with his legal representation, and that no one was forcing him to

plead guilty. Marceleno heard the government represent that it could prove that

he is an alien who was removed from the United States, and that he was found in

New Mexico without permission from the United States to reenter. The district

court found Marceleno competent and capable of entering a guilty plea, and that

his plea was knowing, voluntary, and supported by an independent basis in fact.

Consequently, the district court accepted his guilty plea.

      Marceleno’s counsel now asserts that he made a “critical mistake” by

failing to inquire further into Marceleno’s statement that he was forced to reenter

the United States. Aplt. Br. at 13. Counsel states that he only learned the facts

which Marceleno related at the hearing when preparing Marceleno’s sentencing

memorandum. It was only after this more detailed discussion, approximately four

months after the district court accepted Marceleno’s guilty plea, that Marceleno

filed a motion to withdraw his plea. Marceleno asserted two grounds for

withdrawal: (1) legal innocence, claiming he lacked the intent to reenter the

United States and that he was under duress, and (2) his mistaken understanding of

the strength of his defenses rendered his guilty plea unknowing.

                                          5
      After two days of evidentiary testimony, the motion was denied. The

district court made extensive “findings of fact,” including that it did not find

Marceleno’s testimony regarding his reentry credible. I ROA at 37–41. The

court specifically noted that Marceleno’s testimony was “vague, inconsistent, and

evasive.” Id. at 37. In contrast, the court found the Border Patrol agents’

testimony credible. Systematically rejecting each of Marceleno’s factual

contentions regarding his innocence, the court found that Marceleno

“intentionally crossed the border between Mexico and the United States of his

own free will.” Id. at 41. Marceleno’s subsequent motion for reconsideration

was also denied, and he was sentenced to thirty months’ imprisonment. This

timely appeal followed.

                                          II

      “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.” Fed. R. Crim. P. 11(d)(2)(B). The

defendant “bears the burden of establishing a fair and just reason.” United States

v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007). District courts consider seven

factors when deciding whether a defendant has met this burden: “(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 is knowing and voluntary, and (7)

                                          6
waste of judicial resources.” Id. (quoting United States v. Gordon, 4 F.3d 1567,

1572 (10th Cir. 1993)). If the assertion-of-innocence, knowing-and-voluntary,

and ineffective-assistance-of-counsel factors all weigh against the defendant, a

district court need not consider the remaining four factors. United States v.

Byrum, 567 F.3d 1255, 1265 (10th Cir. 2009).

      On appeal, we review the district court’s application of the Gordon factors

for abuse of discretion, with the exception of two factors which we review de

novo: whether the plea was knowing and voluntary and, if reviewable on direct

appeal, whether counsel provided effective assistance. Id. at 1213, 1215.

Although a motion to withdraw a guilty plea should be “freely allowed,” we will

not reverse a district court’s denial of such a motion unless it acted “unjustly or

unfairly.” United States v. Garcia, 577 F.3d 1271, 1274 (10th Cir. 2009).

      The district court styled its conclusions regarding Marceleno’s assertion of

innocence as “findings of fact,” see I ROA at 36, which we typically review only

for clear error. See United States v. Soto, 660 F.3d 1264, 1268 (10th Cir. 2011).

However, we have been careful to avoid singling out individual Gordon factors

for more deferential review. See Hamilton, 510 F.3d at 1215; Garcia, 577 F.3d at

1274. To review the district court’s overall conclusion on the credibility of

Marceleno’s assertion of innocence only for clear error would deviate from our

previous treatment of motions to withdraw a guilty plea. We therefore review the


                                          7
assertion-of-innocence factor for abuse of discretion. 2

                                         III

      On appeal, Marceleno renews his arguments that he credibly asserted his

innocence and that his plea was not knowing. He does not assert the ineffective-

assistance-of-counsel factor. For the reasons outlined below, we reject

Marceleno’s arguments and conclude the district court did not abuse its discretion

in denying his motion.

                               Assertion of Innocence

      A defendant’s assertion of innocence must be “credible.” Hamilton, 510

F.3d at 1214. A defendant “must support the assertion of innocence with a

credible argument,” meaning he “must make a factual argument that supports a

legally cognizable defense.” Hamilton, 510 F.3d at 1214, 1215 n.2. After

announcing this standard in Hamilton, we did not address the credibility of

Hamilton’s assertion of innocence because, even taking his asserted facts as true,

his theory of defense was not legally cognizable. Id. at 1215. Since Hamilton,



      2
        In Soto, we applied clear error review to a district court’s finding that a
defendant intentionally lied to the court about facts underlying his claim that his
plea was not knowing and voluntary. 660 F.3d at 1268. Similarly, in United
States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir. 2014), we applied clear
error to a district court’s factual finding that the defendant “ha[d] not asserted any
innocence.” Neither of these cases raised the issue of whether a defendant’s
assertion of innocence met the Hamilton credibility standard, and so do not
require that we review that question under clear error here.

                                          8
we have declined to further define this credible-argument standard and instead

have accepted alleged facts, arguendo, and then have ruled that those facts do not

constitute a legally cognizable defense. Garcia, 577 F.3d at 1274.

      Marceleno argues that his version of events, if accepted as credible,

establishes two legal defenses: that he lacked the requisite intent, and that he

reentered the country under duress. Section 1326 requires only that Marceleno

acted “with the intent to do the act of entering the country.” United States v.

Sierra-Ledesma, 645 F.3d 1213, 1219 (10th Cir. 2011) (quoting United States v.

Hernandez-Hernandez, 519 F.3d 1236, 1241 (10th Cir. 2008)). A “natural,

common sense inference” that one found in the United States intended to be there

can satisfy the intent requirement. Id. But Marceleno can rebut that inference

with evidence that “demonstrate[s] that one of the speculative possibilities of

involuntary entry ha[s] actually taken place.” Id. (quoting Hernandez-Hernandez,

519 F.3d at 1241). Marceleno argues his reentry was involuntary because he was

under duress. “A duress defense requires: (1) an immediate threat of death or

serious bodily injury, (2) a well-grounded fear that the threat will be carried out,

and (3) no reasonable opportunity to escape the threatened harm.” United States

v. Portillo-Vega, 478 F.3d 1194, 1197–98 (10th Cir. 2007). If the evidence is

insufficient on any one of these elements, the defense fails. Id. at 1198, 1201

(denying a defendant a jury instruction on duress at trial because the “jury need

not be burdened with testimony” regarding the defense if “elements and testimony

                                          9
supporting one element is insufficient to sustain it even if believed” (quoting

United States v. Bailey, 444 U.S. 394, 416 (1980))).

      Marceleno testified in support of his contention that he entered the United

States involuntarily and under duress. Although Marceleno’s testimony presents

a close case, his duress defense could be a legally cognizable defense if we accept

his testimony as true. 3 First, the smuggler’s purported threat of stabbing was not

directed at sometime in the future, but rather was immediate. Second, although

the threat was only conveyed once and was not supported by a visible weapon or

evidence of prior violence, the interaction was in an isolated environment, and

came from an individual engaged in illegal human trafficking. This threat, as

described by Marceleno, could sustain a well-grounded fear. Finally, unlike prior

cases in which defendants admitted facts either establishing “ample time and

opportunity to contact law enforcement for help” in advance of the illegal acts, or

evidence of reasonable, legal alternatives, we see no reasonable opportunity for

Marceleno to escape the threatened harm here. Cf., United States v. Cornelius,

696 F.3d 1307, 1323–24 (10th Cir. 2012); United States v. Beckstrom, 647 F.3d

1012, 1016–17 (10th Cir. 2011); United States v. Al-Rekabi, 454 F.3d 1113,

1121–22 (10th Cir. 2006); United States v. Glass, 128 F.3d 1398, 1409 (10th Cir.

1997); United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990). Even though


      3
        The district court never reached the question of legal cognizability,
disposing of Marceleno’s defenses as not credible.

                                         10
the threat was conveyed about one quarter of the way into an approximately four-

or five-hour journey, Marceleno testified that the threatening individual

accompanied him into United States territory, leaving him only when he was on

the brink of physical collapse. He contends his physical infirmity then prevented

him from taking any action to avoid his illegal presence in the United States once

the threat dissipated. Moreover, the government has not suggested any

intervening opportunity to escape or other courses of action potentially available

to Marceleno. Instead of arguing the legal insufficiency of Marceleno’s proffered

facts, the government’s argument merely reverts to an attack on Marceleno’s

credibility.

      Thus, we must decide whether the district court abused its discretion by

concluding Marceleno’s testimony was not sufficiently “credible” to weigh the

assertion-of-innocence factor in his favor. Marceleno argues that the district

court was required to accept his facts as true, applying a standard akin to a motion

to dismiss, or alternatively, a motion for summary judgment. Marceleno points to

the following language from Hamilton: “If the movant’s factual contentions, when

accepted as true, make out no legally cognizable defense to the charges, he has

not effectively denied his culpability.” 510 F.3d at 1214–15 (quoting United

States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975)). This statement merely

establishes that defenses must be legally cognizable in addition to credible; it

does not compel a district court to treat a defendant’s factual assertions with any

                                         11
deference. Indeed, in Garcia, we indicated in dicta that we would require some

concrete evidence in order to find an assertion of innocence credible. 577 F.3d at

1274. The defendant in Garcia claimed that a new witness had come forward who

would testify to facts establishing his innocence. Id. We noted that the defendant

“did not provide the district court with a sworn statement or a specific description

of the newly-discovered witness’ potential testimony,” and that a defendant is

“not entitled to withdraw his plea simply because he possesses a non-frivolous

defense theory.” Id.

      We therefore disagree with Marceleno’s contention that his assertions must

be accepted as true. A district court need not accept a defendant’s version of the

facts as true for purposes of evaluating whether a defendant’s assertion of

innocence is credible. To hold otherwise would undermine Rule 11 by removing

the discretion granted to district courts on motions to withdraw a guilty plea.

“Given the great care with which pleas are taken under . . . Rule 11, there is no

reason to view pleas . . . as merely ‘tentative’” before a sentence is imposed.

United States v. Hyde, 520 U.S. 670, 676 (1997) (quoting Fed. R. Crim. P. 32(d)

advisory committee’s note). “Were withdrawal automatic in every case where the

defendant decided to alter his tactics and present his theory of the case to the jury,

the guilty plea would become a mere gesture, a temporary and meaningless

formality reversible at the defendant’s whim.” Id. at 677 (internal quotation

omitted).

                                          12
       On the other hand, the district court need not be convinced that a defendant

is innocent in order to grant a motion to withdraw a guilty plea. Our consistent

requirement for only an “assertion” of innocence that is merely “credible” makes

that clear. As a result, the government’s reference to the preponderance of the

evidence standard applicable to affirmative defenses at trial is inapposite. The

government’s argument that credibility is a “threshold issue” of fact which

district courts must decide before analyzing the Gordon factors is also

unpersuasive. The government’s approach would change the structure of the

seven Gordon factors and, like Marceleno’s argument, would unnecessarily

restrain a district court’s discretion to apply and weigh those factors. See Aplee.

Br. at 13–15.

       The standard therefore lies between the two extremes proposed by the

parties. The Fourth Circuit has provided helpful clarification. Relying on

Hamilton and the same multi-factor test applied by this court, the Fourth Circuit

explained that a credible assertion of innocence “has the quality or power of

inspiring belief,” and “tends to either defeat the elements in the government’s

prima facie case or make out a successful affirmative defense.” United States v.

Thompson-Riviere, 561 F.3d 345, 353 (4th Cir. 2009). A defendant is “not

required to provide conclusive proof” of his innocence. Id. This standard is

appropriate because it does not unduly constrain a district court’s discretion by

forcing it to accept facts as true, nor does it ask a district court to act as a fact-

                                            13
finder on innocence. As always, if a district court concludes that the assertion-of-

innocence factor weighs in favor of a defendant, it still must weigh this factor

with the presence or absence of the remaining Gordon factors.

      Marceleno argues that his testimony demonstrates “indicia of veracity,” and

is therefore credible. Aplt. Br. at 21. Marceleno’s testimony, standing alone,

offered a fairly detailed account of his reentry. Some of Marceleno’s testimony

from the hearing was also corroborated by other evidence, including the fact that

he contacted his probation officer from Mexico, that smugglers sometimes use

decoys (although not usually in his age group), and that he is in poor health.

      However, these corroborated facts are collateral to whether he was forced

by human traffickers to cross the border under physical threat. And Marceleno’s

testimony was riddled with internal problems. He admitted that he has trouble

with his memory, that he never mentioned to Border Patrol agents any of the facts

relevant to either his lack of intent to reenter or duress, and that he twice told

agents he was headed to Fort Worth, Texas. Further, Marceleno’s narrative of

duress was late in coming and did not surface until four months after the district

court accepted his guilty plea.

      On this record, we cannot say that weighing the assertion-of-innocence

factor against Marceleno was an abuse of discretion, or was “unjust or unfair.”

Even under the standard clarified today, the quality and power of Marceleno’s

factual argument to inspire belief is not strong enough to warrant reversal.

                                           14
                           Knowing and Voluntary Plea

      “To enter a plea that is knowing and voluntary, the defendant must have ‘a

full understanding of what the plea connotes and of its consequence.’” United

States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002) (quoting Boykin v.

Alabama, 395 U.S. 238, 244 (1969)). Marceleno does not argue that he did not

understand the meaning or consequences of pleading guilty, but rather that he was

mistaken regarding the strength of his defenses. In support, he cites United States

v. Pressley, 602 F.2d 709 (5th Cir. 1979), which stated generally that when a

“plea was entered by a defendant who acted as a result of mistake, it is an abuse

of discretion not to permit the plea to be withdrawn.” 602 F.3d at 711. However,

the appellant in Pressley, “a man of questionable competence,” claimed that he

was mistaken as to the essential terms of the plea agreement, including the

maximum sentence for his offense. 602 F.2d at 710–11. Here, there is no

question as to Marceleno’s competence or whether he understood “what the plea

connotes” or “its consequence,” including the potential sentence. Marceleno

therefore offers no authority to support his argument that a mistake as to the

strength of one’s defenses renders a plea unknowing. We conclude that the

district court did not err in weighing this factor against Marceleno in denying his

motion to withdraw his plea.




                                         15
                                      IV

     The district court’s denial of Marceleno’s motion to withdraw his guilty

plea is AFFIRMED.




                                      16
No. 15-2074, United States v. Marceleno

HARTZ, Circuit Judge, dissenting:

       The excellent majority opinion properly presents and carefully analyzes the issues

raised on this appeal. But I must respectfully dissent because I would weigh some of the

factors differently in this close case.

       In my view, the district court was required to grant Defendant’s motion to

withdraw his plea. To begin with, the motion preceded sentencing; and under our

precedent, “motions to withdraw guilty pleas before sentencing are to be freely allowed,

viewed with favor, treated with liberality, and given a great deal of latitude.” United

States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996). Of course, a solemn plea of guilty is

entitled to great weight. But there are important countervailing factors here. One is that

Defendant had a good excuse, corroborated by his counsel, for changing his mind about

pleading guilty. He was originally told by counsel that duress would not be a defense to

the charge, and he sought to change his plea only after counsel corrected the original

erroneous advice. What is more, nothing Defendant said when he pleaded guilty

contradicts his present position. These two factors in themselves distinguish Defendant’s

motion to withdraw from the mine run of such motions. Further, the burden on the

prosecution and the court from allowing withdrawal of the plea would appear to be about

as light as that burden could ever be.

       In these circumstances I would think that the only reason to deny withdrawal

would be to avoid a waste of time because conviction is a forgone conclusion. It is

apparently on this point where the majority and I part ways. Although we agree that
Defendant’s version of events, if believed, would constitute a defense to the charge, the

majority views the plausibility of that version as being so slight as to justify denial of the

motion to withdraw. I disagree. I personally am dubious of his account, but I doubt that

I would be selected to serve on the jury in the case. From what I can tell from the cold

record, I believe that a reasonable juror hearing Defendant’s testimony could have a

reasonable doubt about his guilt. Therefore, Defendant should be permitted to go to trial

if he so desires.




                                              2
