                                                    NOT PRECEDENTIAL


 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                              ________

                             No. 10-1695
                              ________


                  UNITED STATES OF AMERICA

                                  v.

                  BONEFACIO LOPEZ-PACHECO,
                                     Appellant
                          ________

            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                     (D.C. No. 4-09-cr-00018-001)
               District Judge: Honorable Malcolm Muir
                                _______


              Submitted Under Third Circuit LAR 34.1(a)
                         December 13, 2010

Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges.

                     (Filed: December 22, 2010)
                               ______

                              OPINION
                               ______
SLOVITER, Circuit Judge.

                                              I.

       This case arose out of an incident that occurred at the federal penitentiary in

Lewisburg, Pa., where Bonifacio Lopez-Pacheco was an inmate. A correctional officer

stopped and searched Lopez-Pacheco as he left the dining hall. The officer discovered

concealed food under his armpits and on his waist. Lopez-Pacheco responded angrily, hit

the correctional officer in the chest, and had to be restrained by other officers after

attempting to hit him again.

       Lopez-Pacheco was charged with simple assault of a correctional officer in

violation of 18 U.S.C. § 113(a)(5). He pled guilty through an interpreter. At his

arraignment, the Magistrate Judge postponed sentencing until a presentence report could

be issued. Upon review of the presentence report in April 2009, Lopez-Pacheco told his

attorney that he was innocent and that he did not remember pleading guilty to the simple

assault charge.

       Because this raised the issue of the defendant’s competency, the Federal Bureau of

Prisons conducted a two-week psychological evaluation of Lopez-Pacheco and issued its

findings on July 28, 2009. The report concluded that “Lopez-Pacheco is presently

competent to proceed,” that he “has the present ability to understand the nature and the

consequences of the proceedings against him and the ability to assist properly in his

defense,” and that “Lopez-Pacheco does not suffer from a mental illness.” App. at 70.


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At Lopez-Pacheco’s competency hearing, the Magistrate Judge ruled that Lopez-Pacheco

possessed the competency to proceed.

       At his sentencing hearing before the Magistrate Judge, Lopez-Pacheco alleged that

at arraignment he did not understand what was happening and that his attorney misled

him into pleading guilty. The Magistrate Judge found Lopez-Pacheco to be not credible

and denied his request to withdraw his earlier plea of guilty. He sentenced him to serve a

consecutive four-month term in prison. The District Court affirmed and Lopez-Pacheco

appeals. 1

                                            II.

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

United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). A defendant may withdraw a

court-accepted guilty plea if “the defendant can show a fair and just reason for requesting

the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The guilty plea cannot be withdrawn on a

“whim.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).

       This court considers three factors when examining a motion to withdraw a guilty

plea: “(1) whether the defendant asserts his innocence; (2) whether the government would

be prejudiced by his withdrawal; and (3) the strength of the defendant’s reason to

withdraw the plea.” Huff, 873 F.2d at 712. Defendants moving to withdraw a guilty plea

must offer facts to show why they initially pled guilty, and why they now assert


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has
       appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             3
innocence. United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). “Bald assertions

of innocence are insufficient to permit a defendant to withdraw his guilty plea.” Jones,

336 F.3d at 252. Since the Government does not argue that it would be prejudiced by a

withdrawal of the plea, only the first and third factors warrant analysis.

       Lopez-Pacheco’s assertion of innocence fails to satisfy the first part of the test.

Absent additional support it constitutes a mere “bald assertion” of innocence. In

addition, the reasons presented by Lopez-Pacheco for his initial guilty plea contradict

each other and undermine his credibility. He argued before the Magistrate Judge that he

did not remember entering a guilty plea, and also that he merely followed his attorney’s

directions. As the Government notes, “it is a mystery how Lopez-Pacheco, purportedly

unable in April 2009 to remember even entering his guilty plea, was able in December

2009 to remember that his counsel had pressured him to do so.” Appellee Br. at 18. The

Magistrate Judge denied Lopez-Pacheco’s motion to withdraw his guilty plea. He noted

that a defendant “has no absolute right to withdraw his guilty plea,” citing United States

v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). App. at 23. He concluded that Lopez-

Pacheco’s claimed lack of memory is not credible. Moreover, in a comprehensive

opinion, the District Court noted the inconsistencies in Lopez-Pacheco’s arguments. It

also discussed the history of the proceedings and Lopez-Pacheco’s awareness of the

results of the guilty plea he entered. Additionally, the Court noted that the psychiatric

evaluation failed to suggest incompetence on the part of Lopez-Pacheco.


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       Lopez-Pacheco has not asserted strong reasons to withdraw the guilty plea. He

alleges that his case for withdrawal is strong because: 1) he believes his assertion of

innocence constitutes a major reason why his motion to withdraw the guilty plea is

warranted; and 2) he blames his counsel and alleges that the “plea was not knowing and

voluntary,” because counsel did not explain what was going on and merely told him what

to say. Appellant Br. at 18.

       The first argument is easily dismissed. As discussed, sufficient factual evidence

must be presented to support the assertion of innocence and why a guilty plea was

entered into initially. The District Court considered this and rejected the assertion of

innocence.

       Lopez-Pacheco’s second claim that counsel misled him is equally unavailing. He

initially said that he did not remember pleading guilty, then alleged it was his attorney’s

fault. As the District Court pointed out, the defendant only turned to the latter argument

“after he had been told that his purported inability to remember his guilty plea proceeding

was not a sufficient reason to withdraw his guilty plea.” App. at 12. As such, the District

Court did not abuse its discretion by reviewing this record and interpreting it in the same

way that the Magistrate Judge did.

                                             III.

       In addition to withdrawal of his guilty plea, Lopez-Pacheco argues that the District

Court abused its discretion by upholding the four-month consecutive sentence because

the court allegedly failed to consider the mandatory sentencing factors set out in 18
                                              5
U.S.C. § 3553(a); and it was unreasonable in light of the time Lopez-Pacheco spent in

“the hole,” his loss of forty-one “good time” days, and the relatively minor charge.

Appellant Br. at 19.

       With regard to the first argument, the sentencing court was not required to

consider the Sentencing Guidelines because the maximum sentence for a violation of 18

U.S.C. § 113(a)(5) is six months, making it a Class B crime not subject to the Guidelines.

U.S.S.G. § 1B1.9. We apply a “highly deferential” standard to the sentencing court’s

determination. United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). Although the

simple assault did not carry enough of a maximum sentence to be subject to the

Guidelines, the Magistrate Judge nonetheless went through the appropriate analysis. He

adequately considered, weighed, and explained the § 3553(a) factors and determined that

the four-month sentence fell within reasonable parameters. The Magistrate Judge noted

the history and circumstances surrounding the offense, and explained why he concluded

the sentence was necessary to punish Lopez-Pacheco for the assault and to deter similar

future conduct so as to maintain safety and order within a correctional center.

       He also addressed the mitigating factors which Lopez-Pacheco cited and explained

why he decided upon a four-month term out of the six possible months. He also

recommended that Lopez-Pacheco be transferred to another correctional facility to avoid

potential mistreatment. Thus, the Magistrate Judge did not merely make a “rote

statement” that would warrant sentence-reconsideration, as Lopez-Pacheco contends.

Appellant Br. at 20; United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006).
                                             6
       The District Court discussed these arguments, properly considered and analyzed

the Magistrate Judge’s ruling as well as the defenses and mitigating factors raised by

Lopez-Pacheco, and found the sentence reasonable based on an adequate consideration of

the § 3553(a) factors in light of the “totality of the circumstances.” App. at 15. As such,

the District Court did not abuse its discretion in upholding the sentence.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order affirming the

Magistrate Judge’s denial of Lopez-Pacheco’s motion to withdraw his guilty plea and

will affirm the sentence imposed.




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