                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2315
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                               RICHARD SHUMAKER,

                                       Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-09-cr-00087-001)
                     District Judge: Honorable Nora Barry Fischer
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 24, 2012

Before: FISHER and GREENAWAY, JR., Circuit Judges, and JONES, * District Judge.

                             (Opinion filed: April 20, 2012)
                                    ____________

                              OPINION OF THE COURT
                                   ____________




      *
       The Honorable John E. Jones, III, District Judge for the United States District
Court for the Middle District of Pennsylvania, sitting by designation.
JONES, District Judge

         Richard Shumaker appeals his conviction on the grounds that the District Court

erroneously denied his motion to withdraw his guilty plea. For the reasons that follow,

we will affirm. 1

                                                 I.

         We write for the parties’ benefit and thus recite only the facts essential to our

disposition. In March 2009, a grand jury in the Western District of Pennsylvania returned

an indictment charging Shumaker with conspiracy to commit mail and wire fraud in

violation of 18 U.S.C. § 1349. The indictment charged that Shumaker conspired with

Susan Fawcett and Larry Konter 2 to defraud American Express by “cycling” or

“factoring” various credit card accounts in a fashion similar to a check-kiting scheme.

Shumaker opened a number of fraudulent credit card accounts with American Express

through Konter, an American Express employee, and processed fake sales of goods and

services from Shumaker’s businesses through these accounts, fraudulently inducing

American Express to pay money to cover the fraudulent charges. They also cycled

hundreds of thousands of dollars between the various accounts, profiting from the “float”




         1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
over this appeal under 28 U.S.C. § 1291.
         2
             Fawcett and Konter were also federally indicted for their participation in the
fraud.


                                                 2
or differences in the due dates set for the payments due on each account. All told, the

scheme resulted in losses to American Express of $574,134.10.

       On the day of Shumaker’s arraignment, Patrick J. Thomassey, Esquire entered his

appearance on Shumaker’s behalf. At the arraignment, Shumaker pled not guilty.

Through counsel, Shumaker filed six motions for extensions of time to file pre-trial

motions, which were all granted by the District Court. Subsequently, on April 8, 2010,

Attorney Thomassey filed a motion to withdraw as counsel citing irreconcilable

differences between himself and Shumaker. The District Court denied the motion

without prejudice to re-submission upon the entry of appearance of alternative counsel

for Shumaker. None came. Thereafter, the District Court conducted a status conference,

during which Attorney Thomassey advised the District Court that Shumaker was likely to

enter a change of plea, which Shumaker confirmed, and Attorney Thomassey also stated

that he was no longer seeking to withdraw as counsel in the matter. A change of plea

hearing was set for May 20, 2010, however, the District Court expressly ordered that the

case would remain set for trial on June 1, 2010, in the event the change of plea did not

take place.

       On May 20, 2010, Shumaker pled guilty to one count of conspiracy to commit

mail and wire fraud. At the change of plea proceeding, the District Court engaged in an

extensive colloquy with Shumaker, in conformity with Fed. R. Crim. P. 11. The colloquy

included questions posed to Shumaker regarding his understanding of the plea agreement,


                                             3
the charges against him, the potential penalties, and the constitutional rights he was

waiving as a result of his guilty plea. The District Court concluded that Shumaker’s plea

was knowingly and voluntarily made, and thereafter accepted it. A presentence

investigation report was prepared by the United States Probation Office, to which

Shumaker lodged no objections. Shumaker’s sentencing was originally scheduled for

September 17, 2010; however, due to a variety of scheduling conflicts, it was ultimately

reset for December 14, 2010.

       Commencing in October of 2010, prior to his sentencing, Shumaker began filing a

series of pro se motions and sending ex parte letters directly to the Court, including an

“emergency” motion to stay proceedings. Generally, these submissions complained

about Shumaker’s counsel, and that he had no access to certain documents in the

possession of the Government which he deemed relevant to his sentencing, and also

lodged allegations against American Express and other individuals. The District Court

set a hearing on Shumaker’s “emergency” motion and admonished him not to directly

contact the Court but to utilize the services of Attorney Thomassey. Shumaker did not

abide by this directive and continued his barrage of pro se filings, indicating within them

both his displeasure with Attorney Thomassey and his intention to request new counsel.

As a result of Shumaker’s direct filings to the Court, Attorney Thomassey again moved

to withdraw from representation. The District Court intended to address both

Shumaker’s and Attorney Thomassey’s motions at a hearing scheduled for December 8,


                                             4
2010; however, Shumaker failed to appear. A warrant was issued for his arrest. 3

Thereafter, Shumaker filed two more pro se submissions with the Court, moving to

continue his sentencing and dismiss the case. Attached to the submissions was a letter

addressed to Attorney Thomassey purportedly terminating his services, stating “[i]n court

in April after you submitted a motion to withdraw, I agreed to consider confession as

long as I had the opportunity to read and consent to the settlement letter, plus you kept

your promise to postpone sentencing one year to go after American Express.”

       Shumaker appeared before the Court on December 14, 2010, the date scheduled

for his sentencing. During that proceeding, the District Court granted Attorney

Thomassey’s motion to withdraw and appointed new counsel for Shumaker, James Brink,

Esquire. The District Court took a recess to permit Attorney Brink to meet with

Shumaker and upon reconvening the hearing, the District Court withdrew the bench

warrant and amended Shumaker’s conditions of release, but permitted him to continue to

reside in Florida. Sentencing was rescheduled for February 8, 2011. However, in the

interim, Attorney Brink filed a motion to withdraw Shumaker’s guilty plea and a motion

to continue sentencing. The District Court converted the February 8, 2011 sentencing

date to a hearing on Shumaker’s motion to withdraw his plea.

       At the February 8, 2011 motion hearing, Shumaker was the only witness presented

by the defense. The Government did not call any witnesses. Various documents were

       3
           Shumaker was residing in Florida during the pre-sentencing phase of his case.


                                              5
entered into evidence. The District Court also questioned Shumaker during the

proceeding. Thereafter, on March 28, 2011, the District Court issued a 55-page opinion

denying Shumaker’s motion to withdraw. On May 11, 2011, Shumaker was sentenced to

twenty seven (27) months of imprisonment, which represented the bottom of his advisory

guideline range, a three (3) year term of supervised release, and was ordered to pay

restitution to American Express in the amount of $574,134.40. 4 This appeal followed.

                                            II.

       We review a District Court’s denial of a defendant’s motion to withdraw his guilty

plea before sentencing for abuse of discretion. United States v. King, 604 F.3d 125, 139

(3d Cir. 2010)(citing United States v. Brown, 250 F. 3d 811, 815 (3d Cir. 2001)); United

States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). A defendant may withdraw a guilty

plea before sentencing if the defendant can show a “fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have recognized that the burden of

showing “fair and just reason” for withdrawal is “substantial” and a defendant is not

entitled to withdraw his plea “simply at his whim.” Jones, 336 F.3d at 252 (internal

marks and citations omitted). In determining whether a defendant has a “fair and just

reason” for withdrawal of his guilty plea, “district courts consider whether: (1) the

defendant asserts his innocence; (2) the defendant proffered strong reasons justifying the


       4
         Shumaker’s liability for the restitution amount was made joint and several with
the liability of Konter and Fawcett.


                                             6
withdrawal; and (3) the government would be prejudiced by the withdrawal.” King, 604

F.3d at 139 (internal marks and citation omitted). Defendants are not permitted to rely on

“bald assertions of innocence” to support their withdrawal of a guilty plea, but must

support their innocence by facts in the record. Jones, 336 F.3d at 252. If a defendant

cannot meet this burden, the Government does not need to show prejudice. United States

v. Martinez, 785 F.2d 111, 116 (3d Cir. 1986). In addition, the defendant must present

“sufficient reasons to explain why contradictory positions were taken before the district

court.” Brown, 250 F.3d at 818 (internal marks and citation omitted).

                                            III.

       In this appeal, Shumaker contends that the District Court abused its discretion

when it rejected his contentions that (1) he is innocent of the crime charged; and

(2) Attorney Thomassey’s ineffectiveness provides a strong reason justifying withdrawal.

We shall discuss each of Shumaker’s arguments in seriatim.

       Shumaker argues that he repeatedly and consistently asserted his innocence before

the District Court and that the Government presented no evidence that would tend to

indicate his guilt. However, the record in this case plainly contradicts Shumaker’s

contention. First, Shumaker clearly and unequivocally admitted his guilt to his role in the

conspiracy, both by executing his plea agreement with the Government and in his sworn

statements made during the change of plea proceedings. Further, he stated in a letter to

Attorney Thomassey that he would “confess” so long as his sentencing was postponed by


                                             7
one year. Second, after carefully considering his motion to withdraw his plea and

conducting a hearing thereon, the District Court found Shumaker’s change of position

less than credible, noting that the record was markedly devoid of evidence to support

Shumaker’s eleventh hour protestations of innocence. The District Court supported its

determination by referring to Shumaker’s unequivocal conduct at the guilty plea hearing,

and by noting that Shumaker had numerous opportunities to vacillate in his decision to

plead guilty at that proceeding, but made no hesitation. Further, the District Court noted

that Shumaker lodged no objections to the offense conduct as set forth in the presentence

investigation report. Additionally, the District Court concluded that the Government had

presented sufficient evidence of Shumaker’s guilt at the hearing on the motion to

withdraw the plea, mostly in the form of admissions elicited during its cross-examination

of Shumaker. For all these reasons, the District Court did not abuse its discretion when it

found that Shumaker did not prevail on his actual innocence argument.

       Turning to Shumaker’s second argument in this appeal– that he supplied sufficient

reasons justifying the withdrawal – Shumaker attempts to cast the blame for his guilty

plea entirely on the alleged ineffective representation of Attorney Thomassey. It is well

established that “[a] court will permit a defendant to withdraw a guilty plea based on

ineffective assistance of counsel only if (1) the defendant shows that his attorney’s advice

was under all the circumstances unreasonable under prevailing professional norms, and

(2) the defendant shows that he suffered ‘sufficient prejudice’ from his counsel’s errors.”


                                             8
Jones, 336 F.3d at 253-254 (citing United States v. Day, 969 F. 2d 39, 42, 45 (3d Cir.

1992). “In order for a guilty plea to be valid, it must ‘represent [] a voluntary and

intelligent choice among the alternative courses of action open to the defendant.’” Id. at

253 (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)).

       Shumaker’s argument rests primarily upon his position that Attorney Thomassey’s

May 10, 2010 letter forced him to plead guilty. That letter, which was penned after the

District Court had conducted a status conference during which Attorney Thomassey

advised that he was no longer moving to withdraw, stated as follows:

       Dear Rich:

       I received your letter of May 3, 2010. All of the things you talk about in
       your case are mitigation factors in sentencing. They do not go to guilty of
       [sic] innocence. I can tell you this; you are walking a very fine line here
       with this Federal Judge. You stood in front of her several weeks ago and
       told her that this case was settled and that you were going to enter a plea on
       May 20, 2010. If you change your mind now, in my opinion, she is going
       to immediately put you in jail and set a trial date in July or August. You
       cannot do this back and forth. I have been practicing criminal law for
       thirty-five years and I am telling you that there is no way to win your case.
       You either have to fire me, apply for a Public Defender, or not show up for
       court. Those are your three options at this point. We have told the Judge
       that you are going to plead guilty on May 20, 2010 and then be sentenced
       sometime around five months later. That is still my best advice for you and
       you should follow it.

       Very Truly Yours,

       s/ Patrick Thomassey




                                              9
Shumaker contends that, based on the contents of this letter, he felt that he had no other

options but to plead guilty, go to jail or flee. This assertion, however, is belied by

Shumaker’s unequivocal statements made under oath at the change of plea hearing that

he was satisfied with Attorney Thomassey’s representation and that he had not been

pressured or coerced into pleading guilty.

       The District Court also rejected Shumaker’s contention that Attorney Thomassey

never reviewed his case with him, finding that Shumaker’s testimony on this point was

inconsistent and not credible. While Shumaker first stated that Attorney Thomassey had

conducted no investigation into his case, on cross-examination and under questioning by

the court, Shumaker admitted that prior to his guilty plea, Attorney Thomassey had

reviewed a multitude of materials with him, including an ongoing investigation in a civil

action in Kentucky that was potentially damaging to his case. 5 Based on the foregoing,

we do not find that Attorney Thomassey’s representation of Shumaker fell below a

standard of objective reasonableness. In fact, we find Attorney Thomassey’s

representation of Shumaker to be entirely appropriate in what was clearly a difficult,

complex case compounded by a problematic client. The scenario before us involves

Shumaker’s quest to evade responsibility and game the system by deflecting blame to

       5
          In 2007, American Express instituted a civil action against Shumaker and his
clients in the United States District Court for the Western District of Kentucky in an
attempt to collect $2.6 million in credit card debt accumulated by Shumaker and his
clients in a similar cycling scheme.


                                             10
others. Ultimately, this transparent exercise failed to convince the able District Judge,

and we are likewise unmoved.

       In sum, we conclude that the District Court did not abuse its discretion in denying

Shumaker’s motion to withdraw his guilty plea. Accordingly, we will affirm.




                                             11
