                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2500




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"USA v. Vonsander" (2007). 2007 Decisions. Paper 1205.
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                                                  NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 06-2500


            UNITED STATES OF AMERICA

                            v.

                 ERICK VONSANDER
                     a/k/a Harry

                    Erick Vonsander,
                          Appellant


       Appeal from the United States District Court
                 for the District of Delaware
            (D.C. Criminal No. 03-cr-00002-1)
      District Judge: Honorable Joseph J. Farnan, Jr.


        Submitted Under Third Circuit LAR 34.1(a)
                    March 30, 2007

Before: RENDELL, BARRY and CHAGARES, Circuit Judges.

                  (Filed April 26, 2007)




               OPINION OF THE COURT
RENDELL, Circuit Judge.

                                              I.

       Erick Vonsander appeals the District Court’s denial of his motion to withdraw his

guilty plea. On September 23, 2004, Vonsander pled guilty to three counts of distribution

of more than five grams of cocaine base. On May 5, 2005, he moved to withdraw his

plea. After a hearing, the District Court denied the motion, by order dated January 24,

2006. Vonsander was later sentenced to 180 months imprisonment, four years supervised

release, and a $300 special assessment. We have jurisdiction over Vonsander’s appeal

pursuant to 28 U.S.C. § 1291.

       Vonsander discussed entering a guilty plea with his counsel during their meeting

that occurred nine days prior to the date that Vonsander pled guilty. During that meeting,

counsel gave Vonsander possible “best case” and “worst case” sentencing scenarios. The

best case, if he pled guilty, was a sentence of five and a half to seven years. The worst

case was a sentence of ten to twelve years.

       Vonsander sought to withdraw his guilty plea after learning that the guideline

sentencing range listed in the final presentence report was 188 to 235 months. This range

was substantially greater than the 121 to 151 months range calculated in an earlier version

of the report. The final report classified Vonsander as a “career offender,” which

accounted for the increase in his guideline sentencing range. Vonsander’s counsel

admittedly did not advise Vonsander, prior to his guilty plea, of the possibility that he

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would be classified as a “career offender” under the Sentencing Guidelines.

                                              II.

       Vonsander argues that the District Court abused its discretion by refusing to allow

him to withdraw his guilty plea. We review a denial of a motion to withdraw a guilty

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

“Once accepted, a guilty plea may not automatically be withdrawn at the defendant's

whim. Rather, a defendant must have a fair and just reason for withdrawing a plea of

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

omitted). The defendant bears the substantial burden of demonstrating the existence of a

“fair and just” reason. Jones, 336 F.3d at 252. “A district court must consider three

factors when evaluating a motion to withdraw a guilty plea: (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. The

defendant cannot rest on a “bald” assertion of innocence, but must support his assertion

with facts in the record. Id. at 252-53. If the defendant fails to show that there is a “fair

and just reason” for withdrawing his plea, then the district court may deny the motion

even if no prejudice to the government is shown. United States v. Harris, 44 F.3d 1206,

1210 (3d Cir. 1995) (citing United States v. Martinez, 785 F.2d 111 (3d Cir. 1986)).

       Vonsander argues that he adequately asserted his innocence before the District

Court as to two of the three counts of distribution of cocaine base. This assertion, he

contends, is supported by his testimony at the withdrawal of plea hearing that he only

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entered a guilty plea because his codefendant went to trial and lost and Vonsander then

feared that he might also lose at trial. Vonsander also testified that he told his counsel

that he was innocent of two of the counts. However, in his plea colloquy, Vonsander

admitted that he had assisted in the distribution of cocaine base on the three occasions at

issue. At the hearing on his motion to withdraw his guilty plea, he reaffirmed that these

prior statements were truthful.

       Vonsander also argues that he should have been allowed to withdraw his plea

because he did not adequately understand the plea agreement. He contends that he did

not understand at the time he entered his plea that he could be subject to a sentence of

greater than seven years. However, Vonsander’s counsel testified at the withdrawal of

plea hearing that he reviewed the plea agreement with Vonsander “word for word” and

that he read each paragraph to Vonsander twice before Vonsander entered his guilty plea.

App. 134. The plea agreement clearly states that “if the Court decides not to follow any

stipulations or recommendation in this memorandum of plea agreement or if the

defendant does not receive the benefits he expects from any such stipulation or

recommendation, the defendant may not withdraw the guilty plea.” App. 135.

Furthermore, Vonsander stated under oath during his plea colloquy that he understood the

charges against him, the terms of the plea agreement, and the rights that he was giving up

by pleading guilty. He also stated during the colloquy that he understood that it was not

possible for anyone to provide any guarantees as to what his sentence would be until the

court had reviewed the presentence report.

                                              4
       Vonsander finally maintains that he could not understand the plea agreement

because he is not a native English speaker. However, Vonsander refused the assistance of

an interpreter during the evidentiary hearing on the withdrawal of his guilty plea. His

counsel stated at that hearing that “[m]y client does not want the interpreter. He says that

he does understand everything that’s going on, I guess.” App. 55. Vonsander confirmed

that he did not wish to use the interpreter because he understood “everything that’s going

on.” Id. Vonsander requested the interpreter’s assistance at the hearing only for the

translation of written documents. As previously noted, Vonsander’s counsel testified that

Vonsander did not review the written plea agreement on his own, but rather that counsel

read the plea agreement to Vonsander, twice.

       The District Court denied Vonsander’s motion to withdraw his guilty plea on the

grounds that Vonsander failed to proffer sufficient evidence of his innocence and his

reasons for withdrawing his plea. We conclude that the District Court did not abuse its

discretion in denying the motion. Vonsander had the burden to show the existence of a

fair and just reason for withdrawing his plea of guilty. After conducting an evidentiary

hearing on the matter, the District Court concluded that Vonsander had failed to meet this

burden. We see no reason to disturb that conclusion.

                                            III.

       Accordingly, for the reasons set forth above, we will affirm the District Court’s

denial of Vonsander’s motion to withdraw his guilty plea.



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