                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-1624
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  DENNIS BURNETT,
                                   a/k/a LITTLE SHIT

                                Dennis Burnett, Appellant
                                _____________________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (No. 2-08-cr-00201-003)
                         District Judge: Hon. Gene E. K. Pratter
                                _____________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                             Wednesday, October 5, 2011

      Before: McKEE, Chief Judge, FUENTES, and GREENBERG, Circuit Judges

                           (Opinion Filed: November 18, 2011)
                                    ______________

                                        OPINION
                                     ______________


McKEE, Chief Judge.

       Dennis Burnett appeals the district court’s denial of his motion to withdraw his

guilty plea. For the reasons set forth below, we will affirm.
                                                  I.

       Because we write primarily for the parties, we will only set forth those facts that

clarify our brief discussion.

       During the Rule 11 colloquy, the district court determined that Burnett was not

under the influence of any substance and that he had no recent history of medical or

psychiatric care. Burnett represented to the court that, although he did not “feel good

right now,” he was thinking clearly and understood the proceedings. Both the prosecutor

and defense counsel informed the court that they had no doubt as to Burnett’s

competence to plead guilty. Accordingly, the district court accepted Burnett’s plea.

       Prior to sentencing, Burnett filed a motion to withdraw his guilty plea. At the

conclusion of the evidentiary hearing on Burnett’s motion, the court denied the motion,

and this appeal followed. 1

                                       II. Withdrawal of Plea

       “We review a district court’s ruling denying a defendant’s motion to withdraw his

guilty plea before sentencing pursuant to an abuse of discretion standard.” United States

v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). A defendant has no absolute right to

withdraw a guilty plea once it has been accepted by the court. Id. Rather, “[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).


1
 The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.

                                              2
           We look to three factors to evaluate a motion to withdraw: (1)
           whether the defendant asserts [his] innocence; (2) whether the
           government would be prejudiced by the withdrawal; and (3) the
           strength of the defendant’s reason to withdraw the plea. 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 omitted) (internal

quotation marks omitted) (quoting United States v. Jones, 979 F.2d 317, 318 (3d Cir.

1992), superseded by statute on other grounds as recognized in, United States v.

Roberson, 194 F.3d 408, 417 (3d Cir. 1999)). “The burden of demonstrating a ‘fair and

just’ reason falls on the defendant, and that burden is substantial.” Jones, 336 F.3d at

252.

       We review a district court’s factual findings regarding competency for clear error.

United States v. Leggett, 162 F.3d 237, 241 (3d Cir. 1998). The standard for competency

to plead guilty is the same as that for competency to stand trial. Taylor v. Horn, 504 F.3d

416, 430 (3d Cir. 2007) (citing Godinez v. Moran, 509 U.S. 389, 399-400 (1993)). “To

be competent to plead guilty or stand trial, a defendant must have a sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding and

must possess a rational as well as factual understanding of the proceedings against him.”

Id. (internal quotation marks omitted) (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)).

       As the district court noted, Burnett’s contention that he was not competent during

his change of plea colloquy is analyzed under the third factor—the strength of the



                                             3
defendant’s reason for seeking to withdraw his plea. 2 Burnett places substantial reliance

on Dr. Voskanian’s conclusion that he was “likely somewhat more incompetent than

competent” to plead guilty. However, as the district court noted, this conclusion was at

best equivocal. In addition, as the district court also noted, Dr. Voskanian’s nearly

exclusive reliance on Burnett’s self-serving statements in formulating his conclusion

undermined the reliability of that conclusion. 3

       According to Dr. Voskanian, Burnett had lost all motivation to defend himself

after learning of his grandfather’s death, but he later decided to fight his case for the sake

of his family. Nevertheless, a change of mind is not an adequate reason for withdrawing

a guilty plea. Brown, 250 F.3d at 815. As the district court pointed out, lack of

motivation is not tantamount to legal incompetence, and Burnett cites no legal authority

to the contrary.

       Thus, Burnett’s statement that he did not feel good at his change of plea hearing

does not establish that he was incompetent. The district court reasonably interpreted this

statement as an expression of an emotional state that is commonly experienced by

criminal defendants preparing to plead guilty to serious charges. After Burnett indicated

that he was not “feeling good,” the court immediately asked him if he nonetheless

2
  Burnett has not asserted his innocence; rather, he relies exclusively on the third factor in
arguing that the district court abused its discretion in denying his motion to withdraw his
guilty plea.
3
  Specifically, the court noted Dr. Voskanian’s failure to interview persons, other than
Burnett, who were present at the change-of-plea hearing on July 14, 2009 and who had
the opportunity to observe Burnett’s demeanor at that hearing. The court also noted that,
although Dr. Voskanian reviewed the transcript of the July 14 hearing, he did not review
transcripts of proceedings that took place before Burnett learned of his grandfather’s
death for comparison.

                                              4
understood the proceedings and whether he was thinking clearly. Burnett answered both

questions affirmatively.

       The district court found Burnett to be “calm, collected and responsive” during the

July 14 hearing and observed that “he manifested no stress, no upset and no distractions

at all.” We have noted that “[s]uch an evaluation is primarily within the province of the

district court.” United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985). The district

court gave great weight to Detective Mooney’s and Mr. Jimenez’s testimony and did not

find Dr. Voskanian’s testimony to be persuasive. The district court’s conclusion that

Burnett was competent is well supported by evidence in the record. We cannot say that

the district court abused its discretion when it denied Burnett’s motion to withdraw his

guilty plea.

                                                 III.

       For the reasons stated above, we will affirm the district court’s order denying

Burnett’s motion to withdraw his plea of guilty.




                                             5
