                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2002

USA v. Ford
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1101




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"USA v. Ford" (2002). 2002 Decisions. Paper 342.
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                                              NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                         No:   01-1101

                   UNITED STATES OF AMERICA

                                v.

                TYRIS FORD a/k/a CHARLES FORD

                          Tyris Ford,
                                 Appellant


       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
               D.C. Criminal No. 98-cr-00465-2
             District Judge: Hon. Robert F. Kelly

       Submitted Pursuant to Third Circuit LAR 34.1(a)
                         May 23, 2002

      Before: McKee, Stapleton & Wallace, Circuit Judges

                     OPINION OF THE COURT
                   (Filed:   June 10, 2002)

McKEE, Circuit Judge.
     Defendant appeals the district court’s denial of a motion to withdraw a guilty plea
that the defendant made two years after he had been sentenced. For the reasons that
follow, we will affirm.
     Inasmuch as we write only for the parties who are familiar with the facts of the
instant appeal, we will not reiterate the factual background except as may be helpful to
our brief discussion.
     The defendant pled guilty to counts 1, 5 and 6 of an indictment charging him with
conspiracy to distribute more than 50 grams of cocaine base in the form of "crack"
cocaine, possession of more than 50 grams of cocaine base with intent to distribute, and
carrying a firearm during a drug trafficking crime. His plea was entered pursuant to a
written plea agreement wherein he stipulated that the cocaine base involved in the
offense was "crack", and that he and his co-conspirators possessed 72.5 grams of a
mixture containing a detectable amount of cocaine base in furtherance of a criminal
conspiracy. He further stipulated that the amount of crack they possessed was reasonably
foreseeable, in that his guideline range should be calculated based upon "crack" cocaine,
and that his codefendant carried a firearm in connection with the drug trafficking
conspiracy.
     Ford’s plea was accepted, and he was thereafter sentenced to 300 months of
incarceration and 10 years of supervised release. Almost two years later to the day, on
January 3, 2001, Ford filed a motion to withdraw his guilty plea. The district court
promptly denied that motion, and this appeal followed.
     We will review the district court’s refusal to allow a defendant to withdraw a
guilty plea for an abuse of discretion. Fed. R. Crim. P. 32(e); U.S. v. Martinez, 785 F.2d
111, 113 (3d Cir. 1986). We have stated that a sentencing court should consider three
factors in exercising its discretion to grant a motion to withdraw a guilty plea. These
include: whether the defendant asserts his innocence, any resulting prejudice to the
government, and the strength of the defendant’s reasons for moving to withdraw. U.S. v.
Trott, 779 F.2d 912, 915 (3d Cir. 1985).
     Here, even at this late date, Ford neither proclaims his innocence nor denies the
accuracy of his stipulation. As noted, the stipulation included an agreement as to the
quantity of crack he and his coconspirators possessed. Nevertheless, he attempts to
justify his request to withdraw his guilty plea by arguing that he was not properly
informed of the prosecution’s burden of proving drug quantity under Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000).
     Apprendi does not apply to Ford’s sentencing. Ford received a sentence of 20
years imprisonment on the counts charging him with drug offenses. 21 U.S.C.
841(b)(1)(C) authorizes a maximum sentence of 20 years for any offense involving
"crack" cocaine regardless of quantity. That maximum increases to 30 years if a
defendant has a prior conviction for a drug felony. Ford has such a conviction.
Accordingly, his sentence is less than the statutory maximum and no issue is presented
under Apprendi. See U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (En Banc).
     However, assuming arguendo that Apprendi applied in Ford’s situation, he is
nevertheless not entitled to withdraw his guilty plea merely because intervening
circumstances have made the government’s proof more difficult. Brady v. U.S., 397 U.S.
742 (1970) ("the fact that [the defendant] did not anticipate [the later change in the law]
does not impugn the truth or reliability of his plea. [Accordingly, there is] no requirement
in the Constitution that a defendant must be permitted to disown his solemn admissions
in open court that he committed the act to which he is charged simply because it later
develops that the State would have a weaker case than the defendant had thought. . .").
     Ford cites several decisions from the United States Court of Appeals for the Sixth
Circuit in arguing that his sentence implicates concerns raised under Apprendi. See
Appellant’s Br. at 19. However, for the reasons which we have set forth herein, we are
not persuaded that those cases establish that the district court abused its discretion in
denying his petition to withdraw his guilty plea two years after he entered it.
Accordingly, the judgement of sentence entered on January 4, 1999 will be affirmed.
TO THE CLERK:
     Please file the foregoing opinion.
                                   By the Court,
                                  /s/    Theodore A. McKee
                                              Circuit Judge
