                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 15-3264
                                    ___________

                          UNITED STATES OF AMERICA

                                          v.

                                 HO-MAN LEE,
                                           Appellant
                     ____________________________________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                      (D.C. Civil Action No. 2-13-cr-00029-001)
                         District Judge: Hon. Kevin McNulty
                     ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                              on Tuesday, June 7, 2016

            Before: CHAGARES, KRAUSE and SCIRICA, Circuit Judges

                          (Opinion filed: November 3, 2016)



                                      OPINION*




      *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Ho-Man Lee was arrested and charged with one count of conspiracy to unlawfully

produce driver’s licenses and three counts of unlawfully producing such identification

documents. He pleaded guilty to the conspiracy charge and, over a year later, filed a

motion to withdraw his guilty plea. The District Court denied that motion, and Lee now

appeals that decision. For the reasons set forth below, we will affirm.

 I.    Background

       Because we write primarily for the parties, we provide background only as

relevant to the issues on appeal. Lee is a native of South Korea, who was admitted to the

United States as a Lawful Permanent Resident in the late 1990s. In 2007, he met a man

named Han Chul Na. They became friends, and, according to Lee, in 2008, Na requested

Lee’s assistance in procuring information on criminal activity in the Korean community.

Per Lee, Na indicated he was a part-time agent for the United States Immigration and

Customs Enforcement Office (ICE) and claimed he needed a “big case” to have his

contract renewed and to obtain full-time employment with ICE. App. 7, 108. Lee

maintains that Na showed him a badge, handcuffs, and a business card listing Na as

“Director” of Homeland Security. App. 7. Lee agreed to help and began providing

information on a number of criminal organizations, including ones involved in financial

fraud, illegal gambling, and prostitution.

       According to Lee, in 2011, Na instructed him to infiltrate a document-fraud

conspiracy administered by a man named Oscar Park, in which capacity Lee assisted Park

in fraudulently obtaining driver’s licenses using forged documentation. Lee received

                                             2
$500 for each issued license, which he claims to have donated to a scholarship. At some

point in 2012, Lee left Park’s enterprise and began an operation with Na that, like Park’s

organization, helped undocumented aliens fraudulently obtain driver’s licenses.

       On June 27, 2012, Lee was arrested for his role in Park’s document-fraud

conspiracy. On January 7, 2014, a week before trial was scheduled, Lee pleaded guilty.

One year later, he filed a motion to withdraw his guilty plea, arguing that he lacked the

necessary mental state to commit conspiracy because he believed he was assisting Na as a

government agent—a belief Lee contends is substantiated by evidence that, after Lee’s

plea, Na was arrested with Homeland Security business cards in his possession and

thereafter began cooperating formally with the United States Government. The District

Court denied Lee’s motion.

 II.   Standard of Review

       We review the District Court’s denial of a motion to withdraw a guilty plea for

abuse of discretion and its findings of fact for clear error. United States v. Martinez, 785

F.2d 111, 113 & n.1 (3d Cir. 1986).

III.   Discussion

       There is no absolute right to withdraw a guilty plea, United States v. Vallejo, 476

F.2d 667, 669 (3d Cir. 1973), and a defendant faces a “substantial burden” in

demonstrating that withdrawal should be allowed, United States v. Siddons, 660 F.3d

699, 703 (3d Cir. 2011). Federal Rule of Criminal Procedure 11(d)(2)(B) states, “[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

                                              3
withdrawal.”1 The fair-and-just-reason inquiry focuses on the so-called Jones factors,

which take into account, “(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).

       To satisfy the first factor, a defendant must make a credible showing of innocence,

supported by a factual record. See id. at 253 (concluding that a “blanket assertion of

innocence” was insufficient because the defendant “offered no credible facts in support of

his claim”). In analyzing the second factor, a defendant must give “strong reasons,”

United States v. King, 604 F.3d 125, 139 (3d Cir. 2010), to justify withdrawing what we

have described as a “solemn admission” of guilt, United States v. Isaac, 141 F.3d 477,

485 (3d Cir. 1998). A “shift in defense tactics, a change of mind, or the fear of

punishment are not adequate reasons” to withdraw a guilty plea. Jones, 336 F.3d at 252

(quoting United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001)).

       On appeal, Lee argues that the District Court erred in analyzing his assertion of

innocence, the first prong of the Jones test, by failing to consider his good faith and

       1
         Lee cites a number of cases that stand for the proposition that courts should
“freely allow[]” guilty plea withdrawals. Appellant’s Br. 22 (citing United States v.
Young, 424 F.2d 1276 (3d Cir. 1970); Kadwell v. United States, 315 F.2d 667 (9th Cir.
1963); Gearhart v. United States, 272 F.2d 499 (D.C. Cir. 1959)). However, each of
these cases pre-dates the 1983 Amendments to the Federal Rules, which added the fair-
and-just-reason standard to Rule 32(d), now codified at Rule 11(d). Since the
amendment, this Court has applied a more stringent test to adjudicate the merit of
withdrawal motions. Martinez, 785 F.2d at 115-16 (rejecting proposition that permission
to withdraw should be “freely granted” as “contrary to the 1983 amendments to [the
Rules]”); see also Jones, 336 F.3d at 252 (“The burden of demonstrating a ‘fair and just’
reason falls on the defendant, and that burden is substantial.”).
                                              4
entrapment defenses, by making credibility determinations about witnesses at his change

of plea hearing, and by deciding the ultimate issue of Lee’s culpability. Lee next argues,

as to the second prong of the Jones test, that the District Court erred in analyzing the

strength of his reasons for withdrawing his plea by failing to consider the Government’s

Brady and Giglio violations, by failing to consider the fact that Na was arrested after

Lee’s guilty plea, and by refusing to grant defense counsel a continuance that Lee

contends was necessary to adequately prepare for trial. We will address each argument

below.2

       A.     First Jones Factor: Lee’s Innocence

       Lee argues that the District Court erred in its assessment of his innocence under

the first Jones factor, faulting the Court for failing to consider, or give proper weight to,

his good faith and entrapment defenses, and, in so doing, improperly making

determinations as to the credibility of testimony offered at Lee’s change of plea hearing

and as to Lee’s ultimate culpability. We disagree.

       Lee urges that because Na duped him into believing he was assisting a government

agent, he lacked the intent necessary to be guilty of conspiracy, and the District Court

thus was wrong to discard his argument that a good faith defense warranted withdrawal

of his guilty plea. The District Court, however, amply considered as part of its analysis

under the first Jones factor whether Lee lacked the necessary mental state to plead guilty,

and it rejected Lee’s argument for sound reasons based on the record. Lee characterizes

       2
         While Lee mentions the third Jones factor in passing, he does not challenge the
District Court’s decision on the basis of that factor.

                                              5
this analysis as an improper assessment of the credibility of testimony and of Lee’s

culpability. But a defendant must offer more than a “bald assertion of innocence,” United

States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005), to merit a withdrawal of a “solemn

admission” of guilt, Isaac, 141 F.3d at 485, and the application of this standard

necessitated that the District Court analyze the record to determine if Lee’s assertion of

innocence was supported by a foundation in the factual record, Gov’t of V.I. v. Berry, 631

F.2d 214, 220 (3d Cir. 1980) (“[T]he good faith, credibility and weight of a defendant’s

assertions in support of a motion [to withdraw a guilty plea] are preeminently issues for

the hearing court to decide.” (quoting United States v. Washington, 341 F.2d 277, 281 (3d

Cir. 1965));3 see also Martinez, 785 F.2d at 113 n.1 (citing Berry for same proposition).

If we were to accept Lee’s approach and prohibit district courts from weighing the

evidence supporting a defendant’s assertion of innocence, “withdrawal would effectively

be an automatic right [because t]here are few if any criminal cases where [a] defendant

[could not] devise some theory or story which, if believed by a jury, would result in his

acquittal.” Berry, 631 F.2d at 220 (quoting United States v. Barker, 514 F.2d 208, 221




       3
        Although Berry was decided in 1980, prior to the 1983 Amendments to the
Federal Rules, it applied Supreme Court case law that imposed a fair-and-just-reason
standard on withdrawal of guilty pleas. Berry, 631 F.2d at 219 (“[T]he Supreme Court
has enunciated the standard that such withdrawal should be permitted ‘if for any reason
the granting of the privilege seems fair and just.’” (quoting Kercheval v. United States,
274 U.S. 220, 224 (1927))).
                                             6
(D.C. Cir. 1975)).4 Accordingly, while Lee disagrees with the District Court’s

disposition under the first Jones factor, we perceive no abuse of discretion.

       As for Lee’s argument on an entrapment defense, a review of Lee’s motion to

withdraw reveals that he never raised entrapment as a basis for innocence in that motion,

and “[i]t is axiomatic that ‘arguments asserted for the first time on appeal are deemed to

be waived and consequently are not susceptible to review in this Court absent exceptional

circumstances.’”5 Tri-M Group, LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011)

(quoting United States v. Petersen, 622 F.3d 196, 202 n.4 (3d Cir. 2010)). Because Lee

has failed to proffer a showing of exceptional circumstances, we decline to consider his

entrapment defense.

       B.     Second Jones Factor: Strength of Lee’s Reasons for Withdrawal

       Lee’s argument as to the second Jones factor—the strength of his reasons to

withdraw his plea—are threefold. None are persuasive.

       First, Lee insists that the Government failed to disclose material exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972). In particular, he argues the Government failed to disclose:

       4
         Moreover, the District Court did not make an ultimate determination about Lee’s
guilt. Lee’s motion was predicated on the fact that he had already pleaded guilty to the
crimes charged in the indictment and had already stated under oath and on the record at
his plea hearing that he was “in fact guilty to the charges [to] which [he pleaded].” App.
266. The District Court cannot be held accountable for finding guilt where Lee had
already admitted to as much himself.
       5
         The Government contends we apply a plain error standard of review, but the
cases it cites in support involved counsel’s failure to object to evidentiary issues at trial.
United States v. Christie, 624 F.3d 558, 567-69 (3d Cir. 2010) (reviewing trial testimony
to which counsel failed to object for plain error).
                                               7
(1) business cards, an ICE badge, and handcuffs found on Na when Na was arrested, (2)

Na’s post-arrest statement to police that he tricked Lee into believing he was an ICE

agent, (3) evidence Na was an informant, and (4) information about Na’s history of

fraudulent misrepresentations to the Government. But, once again, Lee’s motion reveals

that, while he argued new information became available after his guilty plea, he never

raised Brady or Giglio violations to the District Court. Accordingly, Lee’s Brady and

Giglio arguments are waived on appeal. Tri-M Group, LLC, 638 F.3d at 416.

       Second, Lee contends that, even if the Government did not violate Brady and

Giglio, Na was arrested after Lee pleaded guilty, thereby ensuring Lee’s “ability to secure

Na’s presence at trial.” Appellant’s Br. 41. We agree with the District Court that, to the

extent Lee argues this change in circumstances justifies his change of plea, he has failed

to proffer a legitimate reason as to why Na would not have been available to testify

before he was arrested. Na had met with an investigator and provided documents to aid

in Lee’s defense prior to Lee’s plea, and Lee was informed at his plea colloquy that he

would be able to both call witnesses to testify on his behalf and “issue subpoenas or

compulsory process for witnesses to testify in [his] defense.” App. 267. His argument

that Na’s arrest made him more available as a witness is therefore meritless.

       Third, Lee argues he was given inadequate time to prepare for trial and that the

District Court abused its discretion in denying his attorney’s request for a continuance,

thus rendering his guilty plea involuntary. Specifically, he points to retaining new

counsel less than thirty days before trial, and, in that thirty days, he points out, “the

government . . . provided thirty-eight . . . critical exculpatory email . . . and further failed

                                                8
to provide translations for hundreds of other emails that were in the Korean Language

and may have been exculpatory.” Appellant’s Br. 42. We note, first, that the docket

reflects that no motion for a continuance was ever filed by Lee’s counsel, much less

denied. Instead, Lee’s counsel requested a pre-trial conference to discuss how to handle

the flood of new documents, but then withdrew that same request the following day. The

District Court cannot have erred in denying a request for a continuance that was never

made. And because this argument was not presented to the District Court, we deem it

waived on appeal in any event. Tri-M Group, LLC, 638 F.3d at 416.

IV.   Conclusion

       For the reasons set forth above, the District Court did not abuse its discretion in

denying Lee’s motion to withdraw his guilty plea, and we will affirm.




                                             9
