                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 06-3582
                                     _____________


                            UNITED STATES OF AMERICA

                                              v.

                              ERIC DESHAWN IRVIN (1)
                                  aka COOKIE E (1),
                                         Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                    (No. 04-cr-00309)
                           District Judge: Gustave Diamond

                                 Submitted May 11, 2011

            Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                  (Filed : May 31, 2011)

                                      ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

       Defendant Eric DeShawn Irvin pleaded guilty to one count of conspiracy to

distribute and possess with intent to distribute one kilogram or more of heroin, in

violation of 21 U.S.C. § 846. He now appeals from that conviction and the resultant
sentence of 262 months of imprisonment. On appeal, Irvin contends that the District

Court abused its discretion in denying his eve-of-sentencing motion to withdraw his

guilty plea and his day-of-sentencing motion for new counsel. The Government counters

that Irvin‟s appeal is barred by the terms of an appellate waiver, which was a condition of

his plea agreement. We will affirm the conviction, but vacate and remand for

resentencing.

                                                I.

          Because we write solely for the benefit of the parties, we will only briefly recite

the essential facts. Prior to pleading guilty before the District Court, Irvin signed a plea

agreement with the Government, in which he waived his right to take a direct appeal from

his conviction or sentence, subject to the following exceptions:

          (a)    If the United States appeals from the sentence, Eric DeShawn Irvin may
          take a direct appeal from the sentence.

          (b)   If (1) the sentence exceeds the applicable statutory limits set forth in the
          United States Code, or (2) the sentence unreasonably exceeds the guideline range
          determined by the Court under the Sentencing Guidelines, Eric DeShawn Irvin
          may also take a direct appeal from the sentence.

Appendix (“App.”) 162. Directly above Irvin‟s signature block, the plea agreement

stated:

          I have received this letter from my attorney, Mark D. Lancaster, Esquire, have
          read it and discussed it with him, and I hereby accept it and acknowledge that it
          fully sets forth my agreement with the Office of the United States Attorney for the
          Western District of Pennsylvania.

App. 165-66. During the change-of-plea hearing at which Irvin entered his plea of guilty,

the District Court conducted a Rule 11 colloquy with the defendant, in which it ensured


                                                2
that Irvin understood (1) the charges to which he was pleading guilty, (2) the right to trial

by jury that he would relinquish by entering the guilty plea, and (3) the statutory

mandatory minimum penalty of ten years to which he would be subject upon pleading

guilty, as well as the maximum possible penalty of life imprisonment that he could face at

sentencing. The District Court also confirmed that Irvin was satisfied with his counsel‟s

representation, ensured that Miller‟s plea was voluntary and not the result of any coercion

or promises, and explained that the court alone would determine the actual sentence to be

imposed, using the United States Sentencing Guidelines as a guide to determine the

proper starting point.

       The attorney for the Government then recited, at the District Court‟s request, the

terms of the plea agreement, including the appellate waiver provision. Irvin

acknowledged, under oath, that he had read the plea agreement, that he had discussed it

with his counsel, and that he had not been threatened or coerced into signing it. When

asked whether he had been promised anything in exchange for entering a guilty plea,

Irvin stated only that he had been told by his lawyer that if he went to trial, he “could be

looking at more time.” App. 50. Finally, the Government set forth a factual basis and the

District Court, satisfied that it had been knowingly and voluntarily made, accepted Irvin‟s

guilty plea.

       One day before sentencing was to occur and approximately one month after the

District Court issued its tentative findings based on the Pre-sentence Investigation Report

(“PSR”), Irvin filed a pro se motion to withdraw his guilty plea. Irvin alleged that he had

pleaded guilty based on his lawyer‟s representation that “if I took the plea he could get

                                              3
me 10 years.” App. 87. He claimed that he was promised that the Government would

cap the quantity of heroin to a certain amount so that his sentence would fall within a

particular advisory Guidelines range, but he did not specify what he anticipated that range

to be. He further alleged that he and his family had made repeated unsuccessful efforts to

contact his lawyer over the five months preceding sentencing and that he no longer

trusted his lawyer to represent him.

       Irvin‟s lawyer also received a copy of the pro se motion to withdraw on the day

before sentencing. At sentencing, he brought the issue to the District Court‟s attention,

stating that he thought it would be “difficult, if not impossible, for me to continue to

represent [Irvin].” App. 96. The District Court denied what it construed to be a request

to postpone sentencing in order to obtain substitute counsel, finding that the delay caused

by such action would be onerous relative to any potential prejudice to Irvin‟s rights. The

District Court also denied Irvin‟s pro se motion to withdraw the guilty plea because Irvin

had not asserted his innocence and had not put forth a fair and just reason to support the

withdrawal.

       After hearing arguments from the parties, the District Court sentenced Irvin to 262

months of imprisonment, the very bottom of the advisory Guidelines range. This appeal

of the conviction and sentence timely followed.

                                             II.

       The District Court properly exercised jurisdiction over this criminal matter

pursuant to 18 U.S.C. § 3231. Despite the presence of an appellate waiver in Irvin‟s plea

agreement with the Government, we retain jurisdiction to review the District Court‟s final

                                              4
judgment of conviction and sentence pursuant to 28 U.S.C. § 1291. See United States v.

Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). But “we will not exercise that jurisdiction to

review the merits of Irvin‟s appeal if we conclude that [he] knowingly and voluntarily

waived h[is] right to appeal unless the result would work a miscarriage of justice.” Id.

                                            III.

       Because the government has invoked the appellate waiver set forth in Irvin‟s plea

agreement, we will decline to “review the merits of [Irvin‟s] appeal if we conclude (1)

that the issues he pursues on appeal fall within the scope of his appellate waiver and (2)

that he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the

waiver would work a miscarriage of justice.” United States v. Corso, 549 F.3d 921, 927

(3d Cir. 2008). “Generally, our review of the validity and scope of appellate waivers is

plenary.” Id. at 926-27.

       The language of Irvin‟s appellate waiver is broad in its scope and clear in its

import: Irvin agreed to waive the right to take a direct appeal from his conviction or

sentence, unless (1) the government appealed from the sentence, (2) the sentence

exceeded the applicable statutory limits set forth in the United States Code, or (3) the

sentence unreasonably exceeded the Guidelines range determined by the District Court.

This case presents none of these three circumstances and, thus, Irvin‟s appeal of his

conviction and sentence falls within the scope of the waiver.

       Irvin argues, however, that he did not agree to the appellate waiver knowingly and

voluntarily because his lawyer falsely “promised” him that he would receive the

mandatory minimum sentence of ten years if he signed the plea agreement. Our

                                             5
assessment of whether a defendant knowingly and voluntarily entered into a plea

agreement that contains an appellate waiver turns on whether “the district court

„inform[ed] the defendant of, and determined[d] that the defendant underst[ood] . . . the

terms of any plea-agreement provisions waiving the right to appeal or to collaterally

attack the sentence‟ as Federal Rule of Criminal Procedure 11(b)(1)(N) requires.” United

States v. Mabry, 536 F.3d 231, 239 (3d Cir. 2008) (citations omitted; bracketed material

and ellipsis in original). Fed. R. Crim. P. 11(b)(1)(N) imposes a duty upon a district

court during a change-of-plea hearing to “address the defendant personally in open court.

During this address, the court must inform the defendant of, and determine that the

defendant understands, . . . the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.”

       The Government admits that the District Court violated Rule 11(b)(1)(N) in failing

to address Irvin personally regarding the appellate waiver, instead relying on a recitation

of the agreement‟s terms by the Government. Nonetheless, we conclude that this error

does not render Irvin‟s appellate waiver unenforceable.

       Because Irvin did not object before the District Court to its Rule 11 error, he “has

the burden to satisfy the plain-error rule, and must show (1) that there was an error, i.e., a

deviation from a legal rule, (2) that the error was „plain,‟ i.e., clear or obvious, and (3)

that the error affected his substantial rights.” Corso, 549 F.3d at 928 (citation omitted).

Moreover, “relief on plain-error review is in the discretion of the reviewing court, and

even if all three conditions are met we will exercise our discretion to correct the

unpreserved error only if [Irvin] persuades us that (4) a miscarriage of justice would

                                               6
otherwise result, that is, if the error seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 929 (quotations omitted).

       Even assuming that the District Court‟s obvious Rule 11 error affected Irvin‟s

substantial rights, we decline to exercise our discretion to correct the error. The record

before us reveals that, during the Rule 11 colloquy, Irvin confirmed that he had signed

the plea agreement after having an opportunity to read it and discuss it with his lawyer

and that he did so voluntarily. The District Court instructed the Government to recite the

pertinent terms of the plea agreement for the record. Among these pertinent terms was

the appellate waiver provision, which the Government presented in detail. Irvin listened

to this recitation and, on its completion, reasserted his intention to plead guilty. Notably,

he reasserted such an intention after the District Court had thoroughly explained to him

the potential sentencing consequences of his guilty plea. Thus, despite any deficiency in

the Rule 11 colloquy regarding the appellate waiver, the record makes clear that Irvin

understood that, by pleading guilty, he was giving up his right to appeal, except in very

narrow circumstances. And, importantly, he understood that the plea agreement did not

guarantee that he would receive an actual sentence of the statutory mandatory minimum

ten years. On such a record, we must conclude that Irvin has failed to demonstrate that

the District Court‟s error in conducting the Rule 11 colloquy seriously affected the

fairness, integrity or public reputation of the judicial proceedings.

       Still, Irvin asks us to refrain from enforcing the waiver. He suggests that to do so

would work a manifest injustice because the District Court abused its discretion in

denying his day-of-sentencing motion for new counsel. We agree.

                                                7
         We review the District Court‟s denial of Irvin‟s day-of-sentencing request for new

counsel for an abuse of discretion. United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d

Cir. 1999). In order to warrant a last minute substitution of counsel, a defendant must

demonstrate “good cause, such as a conflict of interest, a complete breakdown in

communication, or an irreconcilable conflict with his attorney.” United States v. Welty,

674 F.2d 185, 188 (3d Cir. 1982). “If the district court denies the request to substitute

counsel and the defendant decides to proceed with unwanted counsel, we will not find a

Sixth Amendment violation unless the district court‟s „good cause‟ determination was

clearly erroneous or the district court made no inquiry into the reason for the defendant‟s

request to substitute counsel.” United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.

1995).

         The day before sentencing, the District Court received Irvin‟s pro se motion to

withdraw his guilty plea. In this letter motion, Irvin suggested that he had been unable to

contact his lawyer for five months and that he felt he could no longer trust his lawyer to

vigorously defend him. In light of Irvin‟s letter motion, Irvin‟s lawyer told the District

Court at sentencing that there had been a “complete meltdown of the attorney/client

relationship” and asked to be excused from further representing Irvin because he felt it

would be “difficult, if not impossible” to continue on in that role. App. 96. Without

making any inquiry of Irvin as to why he felt his lawyer could not adequately represent

him at sentencing, the District Court denied the request, finding that the delay caused by

a substitution of counsel would be onerous in relation to the prejudice to Irvin‟s rights

that would result from having his lawyer continue to represent him.

                                              8
       We have made clear that the District Court may properly weigh its interest in the

efficient administration of criminal justice against the rights of the defendant, in order to

determine whether good cause for a request to substitute counsel exists. Goldberg, 67

F.3d at 1098. But we have made equally clear that the district court must at least inquire

as to the reasons underlying the defendant‟s request before finding that he has failed to

demonstrate good cause. Id.; see also United States v. Rankin, 779 F.2d 956, 960 (3d

Cir.1986) (“[A] rigid insistence on expedition in the face of a justifiable request for delay

can amount to a constitutional violation.”). And we think that the District Court‟s failure

to so inquire of Irvin is not only erroneous, but rises to the level of manifest injustice

sufficient to justify setting aside the appellate waiver to which Irvin assented in his plea

agreement.1 Accordingly, we will vacate Irvin‟s sentence and remand for resentencing

after a thorough inquiry as to whether Irvin has demonstrated good cause for his request

to substitute counsel.

       Irvin additionally assigns error to the District Court‟s denial of his pro se eve-of-

sentencing motion to withdraw his guilty plea. “We review a district court‟s ruling

denying a defendant's motion to withdraw his guilty plea before sentencing pursuant to an

abuse of discretion standard.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)

(citing United States v. Harris, 44 F.3d 1206, 1210 (3d Cir.1995)). We have explained

that “[o]nce a [district] court accepts a defendant's guilty plea, the defendant is not

entitled to withdraw that plea simply at his whim.” Jones, 336 F.3d at 252. Rather, a


1
 Despite this conclusion, we sympathize with the District Judge‟s understandable
frustration at the delay interposed by Irvin‟s last minute request to substitute counsel.
                                               9
defendant seeking to withdraw his plea bears the substantial burden of demonstrating that

a fair and just reason exists for permitting him to do so. Id.; see also Fed.R.Crim.P.

11(d)(2)(B). In evaluating whether a defendant has shown a “fair and just reason” for the

withdrawal, 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. Because

the Government has not asserted that it would be prejudiced by withdrawal, we need only

consider the first two factors.

       The first factor — whether the defendant asserts his innocence — is readily

disposed of because Irvin has never asserted any such thing. As to the second factor,

Irvin asks this court to permit him to withdraw his guilty plea because his counsel

allegedly promised him that he would receive a sentence of ten years of imprisonment if

he entered the plea agreement. He claims that this misrepresentation on the part of his

lawyer rendered his guilty plea unknowing and involuntary. We disagree.

       The record before us reveals that, before accepting the guilty plea, the District

Court ensured that Irvin understood that, upon pleading guilty, he faced a mandatory

minimum penalty of ten years of imprisonment and a maximum penalty of life in prison

and that the actual sentence would be determined by the court alone, using the United

States Sentencing Guidelines as a guide. The District Court also verified that Irvin‟s plea

was voluntary and not the result of coercion or any promises. Notably, when asked if he

had been promised anything other than what was contained in the plea agreement, Irvin



                                             10
stated only that he had been told that he “could be looking at more time” if he went to

trial. App. 50.

       “The district court retains a great deal of discretion to deny a withdrawal motion.”

United States v. Jones, 979 F.2d 317, 318 (3d Cir.1992), superseded by statute on other

grounds as recognized in United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).

Reviewing the record of the plea colloquy in this case, the District Court found that, even

if Irvin‟s lawyer did in fact misrepresent the sentence that Irvin would receive upon

pleading guilty, Irvin displayed a complete understanding of the actual sentencing

ramifications of his guilty plea at the subsequent plea colloquy.2 Accordingly, the

District Court held that Irvin had not met his substantial burden of demonstrating a fair

and just reason for withdrawing his plea. Under the circumstances presented here, we are

compelled to conclude that the District Court acted within its discretion in so holding. At

its essence, Irvin‟s only reason for moving to withdraw his plea appears to be that he was

dissatisfied with the advisory Guidelines range set forth in the District Court‟s tentative

findings. But, as we have made clear, “[a] shift in defense tactics, a change of mind, or

the fear of punishment are not adequate reasons to impose on the government the


2
  We note that the District Court incorrectly noted in its memorandum that it “expressly
informed [Irvin] that he would not later be permitted to withdraw his guilty plea if he was
not satisfied with the advisory guidelines sentencing range as calculated by the court. . .
.” App. 90. The District Court did no such thing. Rather, as described above, the
attorney for the Government detailed, at the District Court‟s instruction, the limited
situations in which Irvin would be permitted to appeal his conviction or sentence. This
factual error on the District Court‟s part does not change the outcome of our analysis,
however, since the record makes clear that Irvin understood the terms of the plea
agreement, as well as the sentencing consequences of his guilty plea, and nonetheless
desired to plead guilty.
                                             11
expense, difficulty, and risk of trying a defendant who has already acknowledged his

guilt by pleading guilty.” Jones, 979 F.2d at 318. Accordingly, we find no abuse of

discretion in the District Court‟s denial of Irvin‟s motion to withdraw the guilty plea and

will, therefore, affirm his conviction.

                                            IV.

       For the reasons set forth above, we will affirm Irvin‟s conviction, but we will

vacate his sentence and remand for resentencing after a thorough inquiry as to whether

Irvin has demonstrated good cause for his request for new counsel.




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