                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1938




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Recommended Citation
"USA v. Solomon" (2009). 2009 Decisions. Paper 1264.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1264


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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ___________

                           Nos. 07-1937 and 07-1938
                                 ___________

                       UNITED STATES OF AMERICA

                                       v.

                             WANDA SOLOMON

                                      Appellant.
                                 ___________

                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
              (D.C. Criminal Nos. 05-cr-00350-2 and 05-cr-00385-3)
               District Judge: The Honorable Terrence F. McVerry
                                   ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 22, 2009

         BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.


                           (Filed on: June 01, 2009 )

                                 ___________

                          OPINION OF THE COURT
                               ___________


NYGAARD, Circuit Judge.
       Appellant, Wanda Solomon, was indicted in two separate indictments. The first

indictment charged her with conspiracy to distribute crack cocaine, a violation of 21

U.S.C. § 846 from August 2004 until August 2005. Count One of the superceding

indictment charged her with conspiracy to distribute 5 kilograms or more of cocaine from

1999 until November, 2005, in violation of 21 U.S.C. § 846. Solomon entered into a plea

agreement with the Government, whereby she agreed to plead guilty to one count of drug

conspiracy from each indictment.

       The plea agreement included a broad appeal-waiver provision precluding Solomon

from appealing her conviction or sentence unless the Government appealed or the

sentence exceeded the statutory limits or unreasonably exceeded the Guidelines range.

Before sentencing, Solomon filed a motion to withdraw her guilty plea, which was

directed to the count in the superceding indictment. The District Court denied the motion

and sentenced her to 240 months' incarceration, a $100 special assessment, and five years'

supervised release. On appeal, Solomon argues that the District Court should have

granted her motion to withdraw her guilty plea, and also that her sentence was

unreasonable. We will affirm.

       It is well-established law that a defendant in a criminal case may waive any right,

even a constitutional right, by means of a plea agreement. An appeal of a denial of a

motion to withdraw a guilty plea constitutes a challenge to a defendant's conviction that

falls within the plain language of an appellate waiver provision. We find her waiver of



                                             2
appellate rights enforceable. The language of the plea agreement is clear as to its purpose

and effect. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Solomon did

not enter a conditional plea pursuant to F ED.R.C RIM.P. 11(a)(2) nor did she identify any

issues she wanted preserved for appeal. Solomon signed the agreement, acknowledging

that she had fully discussed it with her attorney. Solomon does not contend that her

appellate waiver was unknowing or involuntary or that it works a miscarriage of justice.

Indeed, her appellate brief is silent on the matter of appellate waiver. Additionally, the

District Court’s colloquy on the appellate waiver was a model of compliance with the

requirements of F ED.R.C RIM.P. 11 and reflects the District Judge’s conscientious effort

to ensure that the waiver was knowing and voluntary. The District Court explained that

Solomon was giving up substantial appellate rights in the plea agreement, and Solomon

confirmed that she understood the effect of the appellate waiver provision.

          Furthermore, even when we review the merits, we conclude that Solomon has not

established that the District Court abused its discretion in denying her motion to withdraw

her guilty plea. A district court considers three factors when evaluating a motion to

withdraw a guilty plea: (1) whether the defendant asserts her innocence; (2) the strength

of the defendant’s reasons for withdrawing her plea; and (3) whether the government

would be prejudiced by the withdrawal. The Government is not required to show

prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of

a plea.



                                              3
       The District Court did not abuse its discretion here. As to the first factor,

Solomon’s claim of innocence is primarily based on her not knowing one of the co-

conspirators until after the conspiracy began. As the District Court acknowledged,

Solomon’s partial lack of familiarity with a co-conspirator is of no legal significance.

The law allows one to be convicted of conspiracy upon evidence that she knew the

essential nature of the illicit plan and her connections with it, without requiring evidence

that she knew all its details or all the participants therein.

       Turning to the second factor, Solomon argues that her counsel was deficient. The

District Court concluded that her allegation is without merit. Ineffective assistance of

counsel claims are not generally entertained on direct appeal. Nevertheless, the record

does reflect that Solomon acknowledged during the plea colloquy that she was satisfied

with her counsel’s performance and that she understood the charges and the facts leading

to them. Moreover, Solomon has not pointed to anything but her own post-hoc, self-

serving statements to undermine the District Court’s decision to reject her attack on

counsel.

       Accordingly, we will enforce the waiver and will affirm the judgment of the

District Court.




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