                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-3588
                                    ___________
United States of America,                 *
                                          *
             Appellee,                    * Appeal from the United States
                                          * District Court for the
   v.                                     * Western District of Missouri.
                                          *
Robert Dale Gray,                         *
                                          *
             Appellant.                   *
                                          *

                                    ___________

                              Submitted: April 14, 1998
                                 Filed: August 11, 1998
                                   ___________

Before FAGG and HANSEN, Circuit Judges, and STROM1, District Judge.
                             ___________

HANSEN, Circuit Judge.

       Robert Dale Gray appeals his conviction and sentence for conspiring to distribute
a controlled substance in violation of 21 U.S.C. § 846 (1994). Gray argues that the




        1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, sitting by designation.
district court2 erred in denying his requests to withdraw his guilty plea and in imposing
a life sentence pursuant to 21 U.S.C. § 841(b)(1)(A). We affirm.

                                    I. Background

      In the summer of 1995, federal agents began investigating a large
methamphetamine manufacturing and distribution scheme operated by Randy Schultz.
Investigators learned that Gray was one of this scheme’s main distributors. Gray’s
paramour, Patricia Bristol, was also a major methamphetamine distributor in the scheme.
After Schultz was arrested in March 1996, Gray and Bristol began to manufacture the
methamphetamine themselves. Gray and Bristol also continued to distribute the drugs.

       On November 1, 1996, a grand jury returned a three count indictment against
Gray. Count I alleged that Gray had conspired to distribute a controlled substance from
January 1995 through July 11, 1996, in violation of 21 U.S.C. § 846. Count II alleged
that Gray had possessed a firearm as an armed career criminal in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Count III alleged that Gray had tampered with a federal
witness in violation of 18 U.S.C. § 1512(b). A second indictment was returned on
December 18, 1996, alleging that Gray had threatened to murder a federal agent in
violation of 18 U.S.C. §§ 115 and 1114. The government filed an information alleging
that Gray had at least two prior felony drug convictions and that he would therefore be
subject to a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A), if he was
convicted of the conspiracy count.

      The two indictments were consolidated for a jury trial which commenced on April
28, 1997. On the afternoon of the first day of trial, Bristol, the government’s



      2
        The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.

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initial witness, began to explain Gray’s role in the conspiracy to distribute
methamphetamine. In the middle of Bristol’s testimony, Gray announced his intention
to plead guilty to count I of the indictment. Specifically, Gray said, “Your Honor, I’m
guilty of possession and distribution. I’m not guilty from [sic] the other three charges.
And that girl should be cut loose.” (Trial Tr. at 13.) Gray also commented, apparently
to the prosecutor, that “I tried to make a deal with you people and you wouldn’t make
a deal with me.” (Id.) The district court immediately called a recess. The parties then
agreed to an informal, unwritten plea bargain in which Gray would plead guilty to count
I, conspiracy to distribute a controlled substance, and the government would dismiss the
remaining counts. Following the recess, the district court held a hearing outside the
presence of the jury and formally accepted Gray’s guilty plea to the conspiracy count.
The government then dismissed the remaining counts.

        On May 5, 1997, one week after his guilty plea, Gray moved to withdraw his plea,
claiming that the conditions of his confinement immediately prior to his trial and the
stress of watching his paramour being “forced” to testify prevented his guilty plea from
being knowing, voluntary, and intelligent. The district court denied the motion in a
written order filed on May 19, 1997. At his sentencing hearing on September 19, 1997,
Gray renewed his request that the court allow him to withdraw his guilty plea. The court
again denied the request. The court sentenced Gray to life imprisonment pursuant to 21
U.S.C. § 841(b)(1)(A), because the conspiracy involved more than one kilogram of a
methamphetamine mixture and Gray had at least two prior felony drug convictions. Gray
appeals, claiming he should be allowed to withdraw his guilty plea and that the district
court erred in sentencing him to a term of life imprisonment.




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                                        II. Analysis

                                      A. Guilty Plea

       Gray first argues that the district court abused its discretion in denying his requests
to withdraw his guilty plea. Gray also argues that he did not knowingly and voluntarily
plead guilty, rendering his plea unconstitutional. We review the district court’s denial
of Gray’s motions to withdraw his guilty plea for an abuse of discretion. United States
v. Prior, 107 F.3d 654, 657 (8th Cir.), cert. denied, 118 S. Ct. 84 (1997). Whether
Gray’s plea was knowing and voluntary is a mixed question of fact and law that we
review de novo. Easter v. Norris, 100 F.3d 523, 525 (8th Cir. 1996), cert. denied, 117
S. Ct. 1322 (1997). In reviewing Gray’s claims, we are cognizant that “[a] guilty plea
is a solemn act not to be set aside lightly.” Prior, 107 F.3d at 657.

       Rule 32(e) of the Federal Rules of Criminal Procedure provides that if a defendant
moves to withdraw a guilty plea “before sentence is imposed, the court may permit the
plea to be withdrawn if the defendant shows any fair and just reason.” The defendant
bears the burden of establishing the fair and just reason for withdrawal. Prior, 107 F.3d
at 657. Although “a defendant seeking to withdraw a plea before sentencing is given a
more liberal consideration than someone seeking to withdraw a plea after sentencing, ‘a
defendant has no absolute right to withdraw a guilty plea before sentencing,’ and the
decision to allow or deny the motion remains within the sound discretion of the trial
court.” Id. (quoting United States v. Boone, 869 F.2d 1089, 1091 (8th Cir.), cert.
denied, 493 U.S. 822 (1989)). Several factors may be considered in determining
whether a court should allow a defendant to withdraw a guilty plea prior to sentencing.
These include whether the defendant has established a fair and just reason to withdraw
his plea, whether the defendant asserts his legal innocence of the charge, the length of
time between the plea and the motion to withdraw, and whether the government will be
prejudiced by the withdrawal. Id.; Boone, 869 F.2d at 1091-92. However, if a
defendant does not present a fair and just

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reason for withdrawal of a guilty plea no need exists to examine the other factors.
United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991), cert. denied, 504 U.S. 921
(1992).

      It is well-established that “a guilty plea must be both knowing and voluntary” to
be constitutionally valid. Parke v. Raley, 506 U.S. 20, 28 (1992). The plea must be “a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.” Id. at 29. This is because “a guilty plea constitutes a waiver of three
constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the
privilege against self-incrimination.” Id.

       Gray argues that the compulsive and emotional manner in which he admitted his
guilt during the first day of trial does not indicate a genuine desire to plead guilty.
Instead, Gray claims that he proclaimed his guilt in a gallant effort to end the suffering
of his paramour while she was being “forced” to testify against him. Gray also contends
that the emotional and mental trauma he suffered while incarcerated prior to trial also
contributed to his inability to freely decide whether to plead guilty as he observed Bristol
testify.

        Although it is unusual for a criminal defendant to confess his guilt in open court
while a witness is testifying, Gray has failed to show that his decision to formally enter
a plea of guilty following a court ordered recess in which he conferred with counsel was
anything but a voluntary choice he knowingly made after adequate opportunity for
reflection and thought. He has also failed to show any fair and just reason to withdraw
his plea. Gray’s self-serving, post-plea claims that he was emotionally distraught and
unable to voluntarily choose to plead guilty fly directly in the face of his own plea
hearing testimony before the district court. Following a recess in which the parties
entered into an informal plea bargain, the district court held a plea colloquy in
accordance with Rule 11 of the Federal Rules of Criminal Procedure. Gray stated to the
court that his guilty plea was “of my own free will,” and that he understood the

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range of punishment he faced, including the possibility of a mandatory life sentence.
(Trial Tr. at 19-23.) Although he admitted that his adrenaline was flowing, Gray said it
did not affect his judgment. Gray stated that he was satisfied with his counsel and that
he had not been threatened or coerced into pleading guilty. He further told the court that
he was not under the influence of any substance. Gray admitted that he was a member
of the conspiracy to possess and distribute methamphetamine from 1995 through early
1996 and that the amount of drugs involved during this period was approximately 54
ounces.

       The district court, which had observed Gray’s behavior during the trial and could
evaluate his demeanor at the plea hearing, found Gray’s post-plea claims to be
“inherently unreliable in light of his plea hearing testimony.” (Appellee’s Adden. at 5.)
This credibility determination is clearly supported by the record, and we will not disturb
it on appeal. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations
in open court carry a strong presumption of verity.”). We hold that Gray knowingly and
voluntarily chose to plead guilty and that the district court did not abuse its discretion in
denying Gray’s presentence motions to withdraw his plea.

                                      B. Sentencing

      Gray next argues that the district court erred in imposing a mandatory life sentence
pursuant to 21 U.S.C. § 841(b)(1)(A). Specifically, Gray claims that his prior felony
drug convictions arose from the same criminal episode and therefore they may only be
counted as one prior conviction under the statute. Because resolution of Gray’s claim
requires interpretation of the sentencing statute, our review is de novo. See United
States v. Williams, 136 F.3d 547, 550 (8th Cir. 1998), petition for cert. filed, __
U.S.L.W. ___ (U.S. June 16, 1998) (No. 97-9553).

      Title 21, U.S.C. § 841(b)(1)(A) provides mandatory minimum sentences for drug
offenses involving large quantities of controlled substances. Gray admitted that he

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conspired to distribute more than one kilogram of a mixture of methamphetamine. Gray
therefore satisfies the first requirement of section 841(b)(1)(A)—his offense involves the
requisite amount of controlled substance.

       To determine the proper mandatory minimum sentence under the statute, we must
consider Gray’s prior drug felonies. The statute provides an incremental approach to
punishment of defendants who repeatedly violate drug laws. See United States v.
Blackwood, 913 F.2d 139, 147 (4th Cir. 1990). As applicable to this case, the statute
imposes mandatory minimum sentences for defendants who are found guilty of
conspiring to distribute one kilogram or more of a mixture or substance containing
methamphetamine. See 21 U.S.C. § 841(b)(1)(A)(viii). If such a defendant does not
have any prior felony drug convictions, the mandatory minimum sentence is ten years.
Id. If such a defendant has one prior felony drug conviction, the mandatory minimum
sentence is 20 years. Id. If such a defendant has two or more prior felony drug
convictions, the mandatory minimum sentence is life imprisonment. Id.

       The structure of this section indicates that “the purpose of this statute is to target
recidivism . . . a legitimate and long-held goal of our criminal justice system.” United
States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991). Because of this purpose, we
have held that if two or more prior drug felony convictions “result from acts forming a
single criminal episode, they should be treated as a single conviction for sentencing
enhancement under section 841(b)(1)(A).” United States v. Millard, 139 F.3d 1200,
1209 (8th Cir. 1998) (citing United States v. Rice, 43 F.3d 601, 605-06 (11th Cir.
1995)); accord United States v. Liquori, 5 F.3d 435, 437 (9th Cir. 1993), cert. denied,
510 U.S. 1063 (1994); United States v. Pace, 981 F.2d 1123, 1131-32 (10th Cir. 1992),
cert. denied, 507 U.S. 966 (1993); Blackwood, 913 F.2d at 145-46. As noted above, the
issue here is whether Gray’s prior felony drug offenses arose from acts constituting a
single criminal episode.




                                            -7-
       On January 26, 1990, Gray was convicted of two counts of felony sale of
methamphetamine in a Missouri state court and was sentenced to two concurrent fifteen-
year prison terms. See State v. Gray, 812 S.W.2d 935, 936 (Mo. App. 1991). Each
count involved Gray’s sales of methamphetamine to an informant cooperating with local
law enforcement. The first sale occurred on January 26, 1989, after the informant
contacted Gray and asked if he had any drugs for sale. Gray told him he had
methamphetamine and instructed the informant to meet him at a local motel. The two
met that afternoon at the motel, although when the informant arrived Gray did not yet
have the drugs. Gray told the informant that the methamphetamine “was just up the
road,” but that he needed the money “up front.” Id. at 937. The informant paid Gray
and was told to come back to the room in fifteen minutes. When the informant returned
to the room, Gray told him “the guy was on his way” with the drugs and that he could
wait in the room, but that he would have to leave when the guy arrived. Id.
Approximately half an hour later, a man arrived and the informant was told to leave. The
informant later returned to the room and Gray gave him the methamphetamine.

      The second sale occurred the following day, January 27, 1989, when the informant
again contacted Gray and asked to buy methamphetamine. Gray told the informant to
come to the same motel room as the previous day. The informant met Gray at the room
and paid him for the drugs. Approximately one hour later a woman entered the room and
removed a container containing methamphetamine from her purse. She threw the
container to Gray who then handed it to the informant.

      Gray’s two felony drug convictions are not part of a single criminal episode and
were properly considered separate convictions under the sentencing enhancement statute.
The two transactions were distinct in time, occurring on separate days, and required
separate planning and execution by both Gray and the informant. Each sale was
separately arranged by the parties and neither sale was contingent upon the other. The
payment for each sale was made separately, and Gray obtained the methamphetamine
for each sale from different sources. Gray’s receipt of concurrent

                                         -8-
sentences for the two counts does not prevent the convictions from constituting separate
criminal episodes under section 841(b)(1)(A). See Liquori, 5 F.3d at 438. Further, the
fact that the drug sales were only one day apart does not prevent these independent
transactions from constituting separate criminal episodes. See United States v. Griffin,
109 F.3d 706, 708 (11th Cir. 1997) (“[T]wo drug transactions occurring on different
days—albeit within the same week and in the same general location—constitute
separate, unrelated offenses for purposes of sentencing under 21 U.S.C. §
841(b)(1)(A)[.]”). As the Sixth Circuit explained, a separate criminal episode may be
“an incident that is part of a series, but forms a separate unit within the whole. Although
related to the entire course of events, an episode is a punctuated occurrence with a
limited duration.” Hughes, 924 F.2d at 1361. Although Gray’s two drug sales may have
formed a series or pattern of drug transactions, each methamphetamine sale was a
separate, punctuated occurrence with a limited duration. We therefore hold that the
district court correctly ruled that Gray’s two prior felony drug convictions for selling
methamphetamine constituted separate convictions for purposes of sentencing pursuant
to section 841(b)(1)(A).

                                     III. Conclusion

       Because we hold that the district court did not err in sentencing Gray to a
mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), Gray’s
arguments relating to the district court’s Sentencing Guideline rulings are moot. We
decline to address the arguments Gray makes in his pro se supplemental briefs tendered
to this court without leave. We do so without prejudice to any later 28 U.S.C. § 2255
motion Gray may bring. Accordingly, we affirm the judgment of the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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