                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-1153
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                              JAMES OLIVER JOHNSON,
                                             Appellant
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 10-cr-00063-001)
                    District Judge: Honorable Edwin M. Kosik
                                   ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 11, 2012
                                    ____________

                Before: RENDELL, GARTH and BARRY, Circuit Judges

                             (Opinion Filed: July 13, 2012)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

       James Johnson pled guilty to one count of conspiracy to manufacture, distribute,

and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846.

Prior to sentencing, Johnson filed a motion to withdraw his guilty plea. The District
Court denied the motion, and imposed sentence. Johnson now appeals. We will affirm.

                                     I. Background

                                 A. Underlying Conduct

       On January 29, 2010, law enforcement agents received information from a

confidential source that Johnson and Jonathan Miller (“Miller”) were planning to

manufacture methamphetamine. Acting on this information, Pennsylvania State Police

Trooper Michael Adams (“Adams”) began surveilling Johnson‟s home. Shortly

thereafter, Adams observed a vehicle driven by Miller arrive at the home. Johnson exited

his residence and got in the car, and the two men drove away. Adams remained at

Johnson‟s residence, and approximately an hour and a half later, the men returned. As

Johnson exited the car, Adams approached the men and identified himself as a

Pennsylvania State Trooper. As he neared the vehicle, Adams noticed a strong chemical

odor of ether and anhydrous ammonia, both key ingredients in the manufacture of

methamphetamine, emanating from the car. Suddenly, Miller, who was still sitting in the

driver‟s seat, started the car‟s engine and sped away from Johnson‟s residence. At the

same time, Johnson fled down the street on foot. Adams pursued Johnson and, after a

brief chase, placed him under arrest. Miller was apprehended a few blocks away by back-

up officers.

       A search of Johnson‟s pockets revealed both packaged and unpackaged

methamphetamine, including some still wrapped in coffee filters commonly used in the


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methamphetamine manufacturing process, and a small digital scale. Other items

associated with methamphetamine manufacturing were seized from Miller‟s car.

                              B. Indictment and Guilty Plea

       On March 9, 2010, a grand jury sitting in the Middle District of Pennsylvania

returned a two count indictment against Johnson and Miller charging them with the

manufacture and distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

(Count One), and conspiracy to manufacture and distribute methamphetamine, in

violation of 21 U.S.C. § 846 (Count Two). The following week, Johnson was arraigned

and entered an initial plea of not guilty. On May 10, 2011, the grand jury returned a

superseding indictment amending Count One to allege the manufacture and distribution

of more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B). In light of the amount of drugs involved and a prior felony drug conviction,

Johnson faced a ten-year mandatory minimum sentence—and a statutory maximum of

thirty years—if found guilty of this charge.

       Johnson was scheduled to be arraigned on the superseding indictment on May 25,

2011. On the morning of the hearing, however, he entered into a binding plea agreement

with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), under

which he agreed to plead guilty to the conspiracy count of the superseding indictment

(Count Two) in exchange for a nine-year prison sentence. Before accepting the plea, the

District Court engaged in a thorough colloquy with Johnson to ensure that he understood


                                               3
the consequences of his decision to plead guilty. (J.A. II at 20-34.)

       At the outset of the colloquy, the District Court questioned Johnson and his

attorney about Johnson‟s prescription medications:

       THE COURT: Are you taking any kind of medication that could affect your
       ability to understand what we‟re doing here?

       THE DEFENDANT: No.

       THE COURT: What are you taking?

       THE DEFENDANT: I take Thorazine and a medication called Remeron.

       THE COURT: And it doesn‟t appear to me that if you‟ve taken that
       medication, it‟s hindering you, in any way. Would you agree, Mr. O‟Brien?
       You have some experience in these matters.

       MR. O‟BRIEN: Yes, Your Honor, I agree that he‟s capable of participation
       in these proceedings.

       THE COURT: All right.

(Id. at 23.) The Court then informed Johnson of his right to a jury trial and explained that

he would be waiving that right by pleading guilty. The Court further confirmed that

Johnson had authorized his attorney to negotiate the plea agreement on his behalf and that

he had “been a party to the negotiations” himself. (Id. at 24.) With respect to

punishment, the Court noted that it was not bound by the parties‟ agreement to a sentence

of nine years, but that Johnson would have the right to withdraw from the plea agreement

if he received a longer sentence. The government gave a detailed recitation of the facts

underlying Johnson‟s offense, at the conclusion of which the Court again addressed


                                             4
Johnson:

       THE COURT: Okay, you‟ve heard counsel for the Government. Is what he
       tells us about you, your conduct and what they found on you correct?

       THE DEFENDANT: I‟m not denying what they found on me.

       THE COURT: And that it was a drug?

       THE DEFENDANT: Yes, it was drugs.

(Id. at 29-30.)

       The District Court then explained at length that the conspiracy charge to which

Johnson was pleading guilty involved not just the possession of drugs, but also an

agreement to possess drugs with the intent to deliver. Thus, the Court emphasized that

aside from demonstrating the presence of drugs in Johnson‟s possession, “the

Government, in addition, would have to show that you knowingly and intentionally

participated in that agreement to commit the offense.” (Id. at 31.) Johnson stated that he

understood this aspect of the charge, entered a plea of guilty, and then confirmed that he

was “satisfied with . . . [his] plea of guilty to this offense.” (Id. at 32.) The Court

accepted the guilty plea, stating: “[T]his Defendant has an experienced lawyer, and after

consulting with his lawyer, I believe, he has voluntarily and intelligently entered into this

plea, and I‟ll adjudge him guilty of Count 2 of the indictment.” (Id. at 32-33.)

                            C. Motion to Withdraw Guilty Plea

       Following Johnson‟s guilty plea, the case was set for sentencing. On July 11,

2011, however, Johnson filed a motion to withdraw his plea. At a hearing on that motion,

                                               5
Johnson argued that he had been under the influence of medication at the time of his plea

and had not been given enough time to think about the agreement before accepting it.

Moreover, he asserted that he had merely possessed the methamphetamine and therefore

was innocent of the conspiracy charge. The District Court denied his motion, informing

him that “if there was the slightest question or hesitation about whether you understood

[your rights], we would never have taken the plea from you.” (Id. at 49.) The Court

further explained that it had reviewed the transcript of the plea colloquy and that

“everything that was said here that day . . . confirm[s] that it was a voluntary and

intelligent plea.” (Id. at 50.) On January 10, 2012, Johnson was sentenced to nine years‟

imprisonment, as contemplated in his plea agreement. He timely appealed.

                                      III. Discussion

       Johnson‟s only argument on appeal is that the District Court abused its discretion

in refusing to allow him to withdraw his guilty plea.1 Federal Rule of Criminal Procedure

11 provides that 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 burden of

demonstrating a „fair and just‟ reason falls on the defendant, and that burden is

substantial.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). In determining


1
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review a district court‟s
order denying a motion to withdraw a guilty plea for abuse of discretion. United States v.
Siddons, 660 F.3d 699, 703 (3d Cir. 2011).
                                             6
whether a defendant has satisfied his burden, 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. “A shift in defense tactics, a change of mind, or the fear of

punishment are not adequate reasons to impose on the government the expense, difficulty,

and risk of trying a defendant who has already acknowledged his guilt by pleading

guilty.” United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001) (citation and internal

quotations omitted).

       Under this three-part test, it is clear that the District Court did not abuse its

discretion in refusing to allow a withdrawal of the guilty plea. As to the first factor,

Johnson offers only a one-sentence assertion, without any elaboration, that he has

“consistently maintained his innocence in this case.” (Appellant‟s Br. at 8.) We have

repeatedly stated, however, that “[b]ald assertions of innocence are insufficient to permit

a defendant to withdraw his guilty plea.” Jones, 336 F.3d at 252. Rather, “[a]ssertions of

innocence must be buttressed by facts in the record that support a claimed defense.”

Brown, 250 F.3d at 818 (citation and internal quotations omitted). Johnson, however,

points to nothing in the record to support a defense to the charges or cast doubt on the

overwhelming proof of guilt proffered by the government.2 Accordingly, he did not


2
 Nor does Johnson provide “sufficient reasons to explain why contradictory positions
were taken before the district court” regarding his guilt. Jones, 336 F.3d at 253 (citation
and quotation marks omitted). In his reply brief, Johnson asserts that at the time of his
guilty plea, he “did not understand that he was admitting participation in a conspiracy to
                                              7
sufficiently show that he is innocent.

       Under the second prong of our analysis, we evaluate the strength of Johnson‟s

reasons for seeking to withdraw his guilty plea. Johnson asserts that he was unable to

fully appreciate the consequences of his guilty plea because: (1) he was under the

influence of prescription medication at the time of his plea; (2) he was not given

sufficient time to consider the agreement before accepting it; and (3) his understanding of

the plea proceedings was impaired by his psychiatric problems and cognitive deficits.

The clear weight of the record evidence, however, undermines each of these contentions.

First, at Johnson‟s plea hearing, he informed the District Court of his prescribed

medication and stated without apparent hesitation that it did not affect his ability to

understand the court proceedings. Moreover, out of an abundance of caution, the District

Court also conferred with Johnson‟s defense counsel, who “agree[d] that he‟s capable of

participation in these proceedings.” (J.A. II at 23.) Second, at no time during his plea

hearing did Johnson indicate that he needed more time to consider the terms of the plea

agreement. Indeed, the record discloses not a single instance in which Johnson hesitated,




manufacture, distribute and possess with intent to distribute methamphetamine, but rather
thought he was admitting guilt to mere possession.” (Reply at 3.) For support, he points
out that in response to the government‟s proffer of evidence, he stated only that he was
“not denying what they found on me.” (J.A. II at 30.) When the record is viewed as a
whole, however, it becomes abundantly clear that Johnson knew exactly what he was
pleading to. As mentioned, the District Court clearly explained that the conspiracy charge
involved not just the possession of drugs, but also an agreement to possess drugs with the
intent to deliver. Johnson repeatedly stated that he understood this aspect of the offense
prior to entering his guilty plea. (Id. at 30-32.)
                                               8
equivocated, or expressed any doubt about his desire to plead guilty. And, third, although

Johnson scored well below average in some areas of an IQ test and has been diagnosed

with major depressive disorder, a psychiatric examination concluded that he “possesses a

rational and factual understanding of the proceedings against him, has the capacity to

assist legal counsel in his defense, and can adequately make decisions regarding his legal

strategy.” (J.A. III at 32.) Accordingly, there is no basis for concluding that Johnson

lacked an understanding of the consequences of his plea.

       Under the third prong of our test, we consider potential prejudice to the

government in the event that the plea were withdrawn. We have made clear, however,

that “the Government need not show such prejudice when a defendant has failed to

demonstrate that the other factors support a withdrawal of the plea.” Jones, 336 F.3d at

255. Here, there can be no doubt that Johnson has failed to meaningfully assert his

innocence or provide a convincing reason for withdrawing his plea. Accordingly, we

need not consider the question of prejudice to the government, as it is abundantly clear

from the other factors that the District Court did not abuse its discretion in denying

Johnson‟s motion to withdraw his guilty plea.

                                      IV. Conclusion

       For the foregoing reasons, the judgment of conviction will be affirmed.




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