                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 27, 2015
                      UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 14-4121
 RODNEY JAMES PALMER,                         (D.C. No. 2:12-CR-00663-RJS-1)
                                                          (D. Utah)
          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges. **


      Defendant Rodney Palmer pled guilty to one count of producing child

pornography in violation of 18 U.S.C. § 2251(a). Prior to his plea, Defendant

acknowledged that between August 2009 and September 2012, he sexually abused

his niece, born in 2003, and photographed the abuse on his cellular telephone.

Following a plea hearing, the district court accepted Defendant’s plea. Thereafter,

however, Defendant had second thoughts and moved to withdraw his plea.

Following an evidentiary hearing and denial of his motion, the court sentenced

      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant to 210 months in prison consistent with his Fed. R. Crim. P. 11(c)(1)(C)

plea agreement. In exchange for the agreement, the Government dismissed a child

pornography possession charge and state authorities agreed not to pursue child sex

abuse charges. Defendant now appeals the denial of his motion to withdraw his

guilty plea. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      “When a defendant moves to withdraw a guilty plea—after its acceptance by

the district court but prior to sentencing—the court must decide whether there is a

‘fair and just reason for withdrawal.’” United States v. Byrum, 567 F.3d 1255, 1264

(10th Cir. 2009) (quoting Fed. R. Crim. P. 11(d)(2)(B)). We review that decision for

an abuse of discretion, considering (1) “whether the defendant has asserted his

innocence;” (2) “whether close assistance of counsel was available to the defendant;”

and (3) “whether the plea was knowing and voluntary.” Id. at 1264–65. Only if the

defendant establishes fair and just reason to withdraw his plea need the court address

the timing of the defendant’s motion, prejudice to the Government, inconvenience

to the court, and waste of judicial resources. Id. at 1265.

      On appeal, Defendant Palmer tells us he is not challenging his guilty plea

based on any defect in the statement he tendered prior to his plea, or in the plea

colloquy. Nor does Defendant assert his factual or legal innocence of the crime. See

United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (“[T]he mere

assertion of a legal defense is insufficient; the defendant must present a credible

claim of legal innocence.”). Of the three points Defendant raised to support his

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motion to withdraw in the district court—namely that his attorneys (1) failed to

pursue a motion to suppress, (2) emphasized the plea offer was about to expire and

he might face life in prison, and (3) impressed upon him the religious and familial

consequences of a failure to plead—Defendant acknowledges the first two get him

nowhere. Thus, he presses only the third point on appeal. Defendant claims that just

prior to his change of plea hearing he had an exchange about religion and family

with the first assistant public defender (FAPD) in the presence of his attorney of

record, an assistant public defender (APD), which rendered his plea involuntary.

According to Defendant, he felt the discussion “about religion, repentance, the effect

on his wife and victim, overtook his will.” Def.’s Br. at 7. “He was so emotional

at the time before his plea due to the pressure from his attorneys, that he was not

able to make a voluntary decision, gave up and pleaded guilty.” Id. at 19.

      Following an evidentiary hearing at which Defendant and his APD testified,

the district court delivered thorough findings and conclusions from the bench. The

court ruled Defendant was not coerced into pleading guilty but instead voluntarily,

knowingly, and intelligently entered into his plea, all the while receiving effective

assistance of counsel. Notably, the court found the APD “credibly testified that

[Defendant] is the person who brought up the subject of his religious beliefs.” Rec.

Vol. 2, at 169. The APD stated Defendant “had referenced on several occasions

praying about the case and what to do and what he felt God was prompting him to

do.” Id. at 95. The APD did not believe the FAPD, who was of the same “religious

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persuasion” as Defendant, “engaged with him about a religion discussion until the

day of the plea.” Id. at 95, 97. Defendant did not testify otherwise. On that same

day, both the APD and the FAPD told Defendant that “ultimately it was his decision”

whether to plead guilty. Id. at 98.

      We have found no case, and the parties have cited none, squarely addressing

the question of what effect a defense attorney’s discussion with a client about the

perceived religious and familial ramifications of a crime may have upon a guilty

plea. Nonetheless, the Wisconsin Supreme Court’s decision in Craker v. Wisconsin,

223 N.W.2d 872 (Wis. 1972), is instructive. In that case, the defendant claimed his

plea was involuntary “because he was subject to religious scruples and family

pressure which prevailed upon him to plead guilty.” Id. at 875. Distinguishing

“between a motivation which induces and a force which compels the human mind to

act,” the court held “[t]he defendant’s religious beliefs regarding the merits of

confessing one’s wrongdoing and his desire to mollify his family or give in to their

desires are self imposed coercive elements and do not vitiate the voluntary nature of

the defendant’s guilty plea.” Id. at 876 (internal quotation omitted).

      Defendant Palmer says his emotion overcame his will immediately preceding

his change of plea hearing. But as we have seen time and again, every child

pornography prosecution is wrought with emotion for the perpetrator, the family, and

the victim. If emotion over what has taken place, what is taking place, and what will

take place serves to render a plea involuntary or counsel ineffective in such case,

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then virtually every guilty plea to such a heinous crime would be suspect.

      The district court specifically recollected observing Defendant’s anxiety

“firsthand” at the time of the change of plea hearing, and found it “neither disabling

nor overwhelming.”     Rec. Vol. 2, at 140.      “[T]he court viewed [Defendant’s]

demeanor and his responses to [its] questions as an indication . . . that [Defendant]

fully appreciated the significance and consequences of changing his plea,” and that

his decision to do so was knowing and voluntary. Id. The court further noted that

when asked at his plea hearing whether “anyone had threatened him or forced him

in any way to plead guilty,” Defendant “testified under oath that there was, quote,

no threat other than the possibility of the charges being much worse, the addition of

state charges if I don’t accept this, end quote.” Id. (emphasis added).

      Defendant’s “solemn declarations made in open court carry a strong

presumption of validity,” a presumption which Defendant has not overcome on the

record before us. United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir.

2014). Moreover, the fact that in all probability a much worse outcome awaited

Defendant had he rejected the plea agreement certainly suggests that to plead other

than he did would have been irrational. See Padilla v. Kentucky, 559 U.S. 356, 372

(2010) (holding that to obtain relief on a claim that counsel’s ineffectiveness tainted

a guilty plea, a defendant “must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances”).




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      The judgment of the district court is AFFIRMED. 1

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




      1
        Here we note Defendant also appeals the district court’s denial of his pro se
motion to dismiss, which he filed following his guilty plea but prior to sentencing.
Therein, Defendant argued the statute under which he was charged is
unconstitutional as beyond Congress’s power to enact.              Defense counsel
acknowledges the frivolity of Defendant’s motion and we appreciate his candor. See
United States v. De Vaughn, 694 F.3d 1141, 1154 (10th Cir. 2012) (“When a
defendant admits guilt of a substantive crime, he cannot reverse course . . . and claim
the criminal statute is unconstitutional.”).

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