                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                       PUBLISH
                                                                     November 3, 2006
                      UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
       v.                                                No. 05-8115
 GREGORY E. GRAHAM, a/k/a
 Godfather, a/k/a G, a/k/a Big Sexy,

              Defendant-Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF WYOMING
                         (D.C. NO. 05-CR-78-J)


David L. Serelson, Cheyenne, Wyoming, for Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United States
Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.


Before HARTZ, McWILLIAMS, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.



      The principal issue in this case is whether a mistake in the Presentence

Report, to which the defendant objected but which was not corrected by the

district court, requires reversal of a sentence predicated on a plea agreement

stipulating to a determinate sentence of twenty-five years. W e AFFIRM .
                         I. FA CTUAL BACKGROUND

      On January 10, 2005, Gregory Graham sold approximately seven grams of

crack cocaine to a government informant. This transaction was part of a larger

drug operation centered around the C heyenne, W yoming home of John Henry

W ilson. According to government informants, M r. Graham would regularly

obtain wholesale quantities of cocaine and crack cocaine in Denver and transport

them to Cheyenne for sale at M r. W ilson's home.   In July 2005, M r. Graham and

several others were charged by superceding indictment with conspiracy to possess

and distribute more than 1.5 kilograms of cocaine base (count 1), and M r. Graham

was also charged with distribution of 7.1 grams of cocaine base (count 5).

      After six days of trial, encompassing nearly all the government’s case-in-

chief, several defendants, including M r. Graham, decided to plead guilty. The

accompanying plea agreements were oral rather than written. Under the terms of

his agreement, M r. Graham pleaded guilty to the distribution charge, waived his

right to appeal, and stipulated to a tw enty-five year sentence. See Fed. R. Crim.

P. 11(c)(1)(C). M r. Graham admitted only to distribution of the 7.1 grams

charged in the distribution count. Unlike one of his co-defendants, M r. Graham

did not admit to the 1.5 kilograms charged in the conspiracy count. As its part of

the bargain, the government agreed to dismiss the conspiracy charge at

sentencing.




                                        -2-
      During the plea colloquy, the court informed M r. Graham of the potential

sentences under counts one and five, of the terms of his plea agreement, including

the waiver of his right to appeal, and of the fact that the court would be bound to

sentence him to twenty-five years incarceration if it accepted the plea agreement.

The court also explained that it would postpone ruling on the plea agreement until

after it reviewed the Pre-Sentence Report (“PSR”). M r. Graham stated that he

understood all of this. The court then explained that, by entering the plea

bargain, M r. Graham would w aive his right to a jury trial and the privilege against

self-incrimination. Further, the court explained the elements and nature of the

crime to which M r. Graham would be pleading, specifically noting that he would

be admitting distribution of “approximately 7.1 grams of a mixture or substance

containing a detectable amount of cocaine base . . . .” R. Vol. XI, at 13. M r.

Graham stated that he understood these facts and entered his plea of guilty. Upon

questioning from the court, M r. Graham agreed that he entered the plea

voluntarily and that he had consulted with his attorney. The court accepted the

plea but reserved acceptance of the plea agreement until sentencing. The trial

continued as to only one of the original co-defendants, who was convicted of

conspiracy to distribute in excess of 1.5 kilograms of cocaine base, and sentenced

to 300 months incarceration.

      The PSR, completed on O ctober 19, 2005, calculated M r. Graham’s offense

level at thirty-eight, a score predicated on relevant conduct involving 22.27

                                         -3-
kilograms of crack cocaine (a number that took into account all of M r. Graham’s

dealings with the conspiracy, as reported by government informants), a two-level

enhancement for possession of a firearm, and a two-level reduction for acceptance

of responsibility. Combined with his criminal history category of III, this

qualified M r. Graham for a sentencing range of 292-365 months. In addition, the

PSR erroneously reported the details of the oral plea agreement, stating that

“defendant would plead guilty to Count 5 of the Superceding Indictment; relevant

conduct involved at least 1.5 kilograms of cocaine base . . . .” R. Vol. XIV, at

4–5.

       M r. Graham responded to the PSR on October 28, 2005, pointing out that

he had not admitted to relevant conduct involving at least 1.5 kilograms of

cocaine base but only to relevant conduct involving 7.1 grams. M r. Graham also

objected to the two-level firearm enhancement and asserted that his criminal

history score overstated his criminal conduct. Lastly, M r. Graham stated his wish

to withdraw his guilty plea and offered three reasons for wanting to do so: first,

Ernest Daniels, a government informant who had not been called at trial, had

recanted his statements regarding M r. Graham’s involvement in the conspiracy;

second, M r. Graham felt that the twenty-five year sentence was unreasonable

given his prior record and familial responsibilities; and, third, at the time of

accepting his plea, M r. Graham had been surprised by the mid-trial pleas of his

codefendants and had only a short time to consider the offer.

                                          -4-
      Sentencing occurred on November 1, 2005. M r. Graham renewed his

objections to the PSR and moved to withdraw his guilty plea. At various points

during the hearing, M r. Graham also expressed confusion about the plea he had

entered and dismay at the length of his sentence. The court denied M r. Graham’s

motion. First, the court noted that M r. Daniels’s retraction was likely motivated

by his anger at the government for not delivering on a sentencing promise and

that M r. Daniels had provided no testimony at M r. Graham’s trial. Second, the

court observed that in the continued trial of the codefendant who had chosen not

to plead, the jury determined, beyond a reasonable doubt, that more than four

kilograms of crack cocaine w ere involved in this case. Third, crediting the PSR’s

erroneous report of M r. Graham’s stipulation, the court reasoned that:

      the Plea Agreement in this matter was at least 1.5 kilograms. The
      defendant doesn’t hesitate to attempt to back out of that Plea
      Agreement in terms of drug quantity, but . . . he’s either committed
      to it by his own admission as part of the Plea Agreement or not for
      purposes of relevant conduct.

R. Vol. XII, at 12; see also id. at 18. Fourth, the court found that M r. Graham’s

familial role did not greatly bolster his request, given that the Sentencing

Guidelines disfavor such considerations. Fifth, the court rejected M r. Graham’s

assertion that the plea bargain unfolded too quickly for him to give it adequate

consideration; instead, the court found that his plea was the last to be taken and

that he had “substantial time . . . to consider his situation.” Id. at 13. Indeed, the

court noted that M r. Graham entered his plea bargain only after he had a chance

                                          -5-
to hear nearly all of the case against him, which put him “probably in the best

position he would ever be in to make an assessment as to whether to take the deal

that was offered by the government in this case.” Id. at 15–16.

      The district court also rejected M r. Graham’s objection to his criminal

history score, noted that the binding plea sentence fell within— and was at the

lower end of— the 292–365 month range determined in the PSR, and accepted the

plea agreement. The court found that “the sentence imposed is the most

reasonable sentence upon consideration of all factors enumerated under [18

U.S.C. § 3553] and the binding Plea Agreement under [Fed. R. Crim. Pro.

11(c)(1)(C)]” and noted that “the same sentence would be imposed even if the

advisory guideline range was determined to be improperly calculated.” Id. at 32.

      M r. Graham timely appealed. 1

                                 II. D ISC USSIO N

A. M otion to W ithdraw the Plea Agreement

      M r. Graham argues that the district court abused its discretion in rejecting

his motion to withdraw his guilty plea. Federal Rule of Criminal Procedure 11(d)

governs the w ithdrawal of guilty pleas and states:

      A defendant may withdraw a plea of guilty or nolo contendere:

      1
        On April 10, 2006, M r. Graham’s attorney filed a brief on his client’s
behalf. M r. Graham, believing that this brief did not adequately present his
claims, filed a motion to supplement. We granted that motion and consider both
the arguments presented in the initial brief and those in the pro se supplemental
brief.

                                         -6-
              (1) before the court accepts the plea, for any reason or no reason; or
              (2) after the court accepts the plea, but before it imposes sentence if:
                     (A) the court rejects the plea agreement under Rule 11(c)(5);
                     or
                     (B) the defendant can show a fair and just reason for
                     requesting the withdrawal.

Because the district court accepted M r. Graham’s guilty plea at the August 23,

2005, hearing, his request falls under subdivision (d)(2)(B) of Rule 11. See

United States v. Hyde, 520 U.S. 670, 671 (1997). This Court determines whether

a defendant can show “a fair and just reason” under this provision by reference to

seven factors, and we review the district court’s denial of the motion to withdraw

under an abuse of discretion standard. See United States v. Yazzie, 407 F.3d

1139, 1142 (10th Cir. 2005) (en banc). Since all factors cut against the

Defendant, we find that the district court did not abuse its discretion.

      1. Whether the defendant has asserted his innocence. M r. Graham does not

claim to be innocent of the distribution charge for w hich he was convicted.

Rather, he argues that he has asserted innocence as to the erroneous relevant

conduct stipulation in the PSR. The mistake in the PSR, however, is a separate

issue. The question here is whether the Defendant claims innocence as to the

charge to which he pleaded. He does not, and this factor thus weighs against

allowing withdrawal. See, e.g., United States v. Siedlik, 231 F.3d 744, 749 (10th

Cir. 2000).




                                           -7-
      2. Whether withdrawal would prejudice the government. M r. Graham

asserts that the government, at the sentencing hearing, “made no showing of any

prejudice that would result” from granting his motion. Brief for Defendant-

Appellant at 5. W ithdrawal of the plea, however, would require the government

to prepare and try anew a case it had substantially completed when M r. Graham

entered his guilty plea. As such, this factor cuts against withdrawal. See Siedlik,

231 F.3d at 749 (“[W]ithdrawal likely would prejudice the government by forcing

it to undergo much of the same process it already has completed.”); United States

v. Jones, 168 F.3d 1217, 1220 (10th Cir. 1999); United States v. Carr, 80 F.3d

413, 420 (10th Cir. 1996).

      3. Whether defendant delayed in filing his motion to withdraw, and if so,

the reason for the delay. M r. Graham first signaled his desire to withdraw his

plea on October 28, 2005, about two months after he entered the plea and three

days before his sentencing hearing. He argues that this delay was attributable to

the late-breaking discovery of M r. Daniels’s recantation and to the fact that he

was incarcerated at some distance from his counsel. M r. Daniels, however, did

not appear as a witness at trial. Accordingly, his recantation could have had little

effect on M r. Graham’s prospects at trial, and thus does not furnish a sufficient

reason for the delay. As for M r. Graham’s incarceration at a distance from his

counsel, this is not an uncommon situation and is not one, absent further

explanation, that excuses such a lengthy delay. It seems that the true reason for

                                         -8-
M r. Graham’s motion is a change of heart about the sentence he faces under the

bargain. Such a shift, while understandable, is not an excuse for delay. This

factor w eighs against the defendant. See Siedlik, 231 at 749–50; Carr, 80 F.3d at

420 (“[I]f the defendant has long delayed his withdrawal motion, and has had the

full benefit of competent counsel at all times, the reasons given to support

withdrawal must have considerab[le] . . . force.”) (quoting United States v.

Vidakovich, 911 F.2d 435, 439–40 (10th Cir. 1990) (alterations and omissions in

original).

      4. Whether withdrawal would substantially inconvenience the court. M r.

Graham argues that because the August 2005 trial would have proceeded with or

without him, and because he could be ready for a new trial on short notice,

withdraw al of his plea w ould not cause great inconvenience to the court. If M r.

Graham were allowed to withdraw his plea, however, the district court would

have to set aside time for a new trial— an obvious inconvenience. See Siedlik,

231 F.3d at 750; Jones, 168 F.3d at 1220. The district court has already expended

significant resources in trying this Defendant, and it was his choice to opt out of

that process after assessing the near entirety of the case against him. This factor

weighs against allowing withdrawal.

      5. Whether close assistance of counsel was available to the Defendant. In

the brief filed by his attorney, M r. Graham asserts that although he had assistance

of counsel, he was surprised by his co-defendants’ plea bargains and had only a

                                         -9-
few hours to decide whether to accept a plea bargain or continue with trial.

Despite this short time period, M r. Graham’s lawyer advised him to plead guilty

after having had the opportunity to test the government’s case throughout the

trial. As the district court noted, when he made his plea, M r. Graham was in

“probably the best position he would ever be in to make an assessment” of

whether to plead guilty. R. Vol. XII, at 15–16. It thus appears that M r. Graham

benefitted from the close and informed assistance of counsel before choosing his

path.

        In his supplemental filing, M r. Graham argues that his attorney never

advised him of the rights he was relinquishing by pleading guilty. W hether or not

this assertion is true, during the plea colloquy the district court very thoroughly

catalogued the implications of entering a plea of guilty and M r. Graham stated

that he understood the waivers attendant to such a plea. See R. Vol. XI, at 11–13.

Thus, this factor also weighs against allowing withdrawal.

        6. Whether the plea was knowing and voluntary. M r. Graham argues that

the lack of a written plea agreement and the pressure of a last-minute plea deal by

his codefendants affected the knowing and voluntary nature of his plea. As

demonstrated by the confusion in this case, oral plea agreements are far from

ideal; but they are valid. See e.g., United States v. Gardner, 417 F.3d 541,

544–45 (6th Cir. 2005); Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003).

And though he now professes contrary notions, M r. Graham participated in a Rule

                                         -10-
11 colloquy that leaves little doubt that his plea was knowing and voluntary. The

court carefully explained the charges M r. Graham faced at trial, the terms of the

proposed agreement, and the rights he would relinquish by entering the

agreement. M r. Graham stated that he understood everything the court had

explained to him. This factor thus weighs against allowing withdrawal. See, e.g.,

United States v. Gordon, 4 F.3d 1567, 1573 (10th Cir. 1993) (knowing and

voluntary plea taken in compliance with Rule 11 weighs against motion to

withdraw).

      7. Whether the withdrawal would waste judicial resources. This factor

triggers similar concerns as those raised under the “inconvenience to the court”

factor and w eighs against allow ing withdrawal for the same reasons.

B. Error as to the Terms of the Bargain

      At various points in his pro se supplemental brief, M r. Graham objects to

the district court’s reliance on the PSR’s erroneous assertion that he had agreed in

his plea bargain to relevant conduct involving 1.5 kilograms of cocaine base

rather than 7.1 grams. To be sure, the district court committed error here, and the

fact that M r. Graham’s repeated objections prompted neither the probation

officer, nor the prosecutor, nor the court to check the transcript and correct this

mistake is disturbing. Indeed, if the error in the PSR had been determinative of

M r. Graham’s sentence, we would reverse and remand for resentencing. But that

is not the case here. M r. Graham entered into a Rule 11(c)(1)(C) plea bargain, in

                                          -11-
which he agreed to a stipulated sentence of twenty-five years. Such a stipulation

“binds the court once the court accepts the plea agreement.” Fed. R. Crim. P.

11(c)(1)(C). The court thus did not use the PSR to calculate a specific sentence,

but rather as one data point among several in determining whether to accept the

plea agreement.

      M r. Graham correctly points out that the district court reserved accepting

the plea agreement pending review of the PSR. And at the sentencing hearing,

the district court credited the erroneous 1.5 kilogram stipulation as one factor in

favor of rejecting M r. Graham’s motion and accepting the plea agreement. If

these were the only facts before us, we might be inclined to remand for

reconsideration based on a corrected PSR. But the transcript of the sentencing

hearing convinces us that the court relied on several additional factors in

accepting this plea agreement and that a corrected PSR would not have made a

difference in the outcome of this case. First, the district court had before it a

trial’s worth of evidence regarding M r. Graham’s involvement in this drug

conspiracy. See R. Vol. XII, at 11. Second, the court noted that the jury in the

continued trial of M r. Graham’s co-defendant found, beyond a reasonable doubt,

that the conspiracy involved 4.7 kilograms of cocaine base. See id. at 11, 15, 18.

Third, the court had before it the fact that M r. Graham agreed to this sentence

after evaluating the near totality of evidence amassed against him by the

government. Last, and most importantly, the court stated that “the same sentence

                                          -12-
would be imposed even if the advisory guideline range was determined to be

improperly calculated.” Id. at 32. Under these circumstances, we find the error

harmless.

C. Remaining Claims

      M r. G raham raises several other claims that merit but brief discussion.

First, he argues that his attorney provided ineffective assistance of counsel by

advising him to agree to a plea bargain. Any such claim is more appropriate for

review on habeas. See Gordon, 4 F.3d at 1570 (nothing that, aside from “rare

instances,” the “preferred avenue for challenging the effectiveness of counsel in a

federal criminal case [is] via collateral attack”).

      Second, M r. Graham argues that he did not enter his plea knowingly and

voluntarily. As we have detailed above, the record of the meticulous Rule 11

colloquy in this case rebuts this argument. The district court fully informed M r.

Graham of the terms of the charges to which he was pleading, of the rights he

would give up by pleading, and of the terms of the plea bargain into which he was

about to enter. M r. Graham stated that he understood each of these warnings and

freely entered his plea.

      Third, M r. Graham argues that his sentence issued in violation of United

States v. Booker, 543 U.S. 220 (2005), which held that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

                                          -13-
must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Id. at 244. Booker, however, is not implicated w here the district court

accepts a stipulated sentence under a Rule 11(c)(1)(C) plea bargain. See United

States v. Silva, 413 F.3d 1283, 1284 (10th Cir. 2005) (“[N]othing in Booker

undermines the validity of sentences imposed under Rule 11(c)(1)(C).”).

      Fourth, M r. Graham argues that the criminal history points reflected in the

PSR were uncounseled misdemeanor pleas and thus could not be used to enhance

his sentence. Again, we note that the PSR was not used to calculate a sentence,

but only as one data point in deciding whether the stipulated sentence in this plea

bargain should be accepted. W e therefore need not reach this argument.

      Fifth, M r. Graham argues that the district court ran afoul of Rule 32(i)(3)

by not specifically ruling on a disputed matter in the PSR, namely, the

erroneously reported 1.5 kilogram stipulation. According to the Rule, “[a]t

sentencing, the court . . . must— for any disputed portion of the presentence report

or other controverted matter— rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing . . . .” Fed. R. Crim. P.

32(i)(3)(B). W hile the court did not explicitly rule on the objection to the error, it

did find that “the same sentence would be imposed even if the advisory guideline

range was determined to be improperly calculated.” R. Vol. XII, at 32. In other




                                          -14-
words, a “ruling [wa]s unnecessary . . . because the matter [would] not affect

sentencing . . . . Fed. R. Crim. P. 32(i)(3)(B).

      A s to the other claims raised by M r. Graham in his supplemental filing, w e

have considered them and find them to be without merit. Therefore, we AFFIR M

the judgment of the district court.




                                          -15-
