                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 14-4175
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                                    SANTO ISLAAM,

                                                        Appellant



                     On Appeal from the United States District Court
                              for the District of New Jersey
                        (District Court No.: 1-12-cr-00776-001)
                      District Judge: Honorable Robert B. Kugler



                       Submitted under Third Circuit LAR 34.1(a)
                                   On June 1, 2015

          Before: RENDELL, HARDIMAN, and VANASKIE, Circuit Judges

                              (Opinion filed: June 22, 2015)


                                      O P I N I O N*



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Appellant Santo Islaam appeals from the District Court’s denial of his motion to

withdraw his guilty plea. For the reasons articulated below, we will affirm.

       On February 24, 2012, Camden City Police arrested Appellant after observing him

providing cash to another individual in exchange for certain small items. The police

officers who stopped him found a loaded revolver, two zip-lock bags of heroin, and a bag

of cocaine on his person. Appellant was arrested and subsequently indicted for unlawful

possession of a firearm as a felon, unlawful transportation of firearms, and possession of

heroin and cocaine. Appellant was represented by an Assistant Federal Public Defender

and entered a plea of guilty on September 16, 2013 to Possession of a Weapon by a

Convicted Felon. In exchange for this plea, the Government agreed to dismiss his other

two counts at his sentencing.

       Subsequently, Appellee filed a pro se letter to the District Court, which it

interpreted as a Motion for New Counsel and Motion to Withdraw his Guilty Plea. In the

letter, Appellant asserted that his counsel coerced him to plead guilty by advising him

that he was potentially facing a penalty of 25 years to life if convicted at trial, and that he

had no realistic chance of being found not guilty. The District Court appointed him new

counsel, who represented in the hearing on his withdrawal motion that, if called to testify,

Appellant would state that the firearm was not his, was not in his possession at the time

of arrest, and that he was not aware of its existence at the time of his arrest. Appellant’s

new counsel also stated that Appellant would testify that the officers who arrested him



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lied when they stated that they found the firearm on his person, and that it was in fact

recovered from the wheel well of a nearby car.

       The District Court denied Appellant’s motion to withdraw his plea, finding that he

had not met his burden of showing sufficiently strong reasons to justify the withdrawal.

The Court credited his sworn testimony of his guilt from his prior court appearances over

his unsworn recantations of his plea through his attorney, and found that he had not

demonstrated that his original counsel had given him incorrect legal advice, or coerced

him to plead guilty.

       We review a district court’s ruling on a motion to withdraw a guilty plea for abuse

of discretion. United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). A district

court has the discretion to permit a defendant to withdraw a guilty plea prior to

sentencing if the defendant can show “a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. Pr. 11(d)(2)(B). “When determining whether a defendant

has shown a fair and just reason for withdrawing a guilty plea, a district court must

consider whether: (1) the defendant asserts his innocence; (2) the defendant proffered

strong reasons justifying the withdrawal; and (3) the government would be prejudiced by

the withdrawal.” Siddons, 660 F.3d at 703. “Assertions of innocence must be buttressed

by facts in the record that support a claimed defense.” Id. “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.” Id. at 703 (quoting United States v. Jones,

336 F.3d 245, 252 (3d Cir. 2003)).

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       Appellant failed to carry his burden of demonstrating a fair and just reason

sufficient to justify permitting him to withdraw his guilty plea. While Appellant asserted

his innocence, he did not corroborate that claim with objective evidence, such as

statements from other witnesses or other tangible evidence. The District Court

reasonably credited his previous admission of guilt under oath over his later recantations

of that admission while not under oath – namely, by way of a proffer through his

attorney.

       The District Court did not abuse its discretion in rejecting Appellant’s contention

that his original trial counsel was ineffective. “A court will permit a defendant to

withdraw a guilty plea based on ineffective assistance of counsel only if (1) the defendant

shows that his attorney’s advice was under all the circumstances unreasonable under

prevailing professional norms, and (2) the defendant shows that he suffered ‘sufficient

prejudice’ from his counsel’s errors.” Jones, 336 F.3d at 253-54 (internal citations

omitted). Appellant argues that he pled guilty to the gun possession charge despite his

innocence because his counsel advised him that he had no chance of winning at trial, and

that the District Court judge had “stacked the deck” in favor of the prosecutor. However,

this advice was reasonable. At trial, the Government would have presented the

eyewitness testimony of two police officers who would have stated that they saw

Appellant engage in a drug transaction, and found a gun and drugs on his person upon

stopping him. The jury would have likely believed the testimony of the two police

officers over the Appellant, a convicted felon, particularly because Appellant provided no

reason why the officers would have framed him for the crime, or how they would have

                                             4
known to look for the firearm in the wheel well of a nearby vehicle. Appellant faced 25

years to life imprisonment if convicted by a jury. Additionally, the Government had

agreed to drop the drug possession charges against him in exchange for a guilty plea on

the gun possession charge.

       In Government of the Virgin Islands v. Berry, we affirmed a district court’s denial

of a defendant’s motion to withdraw his guilty plea. 631 F.2d 214, 221 (3d Cir. 1980).

The defendant argued that he submitted the plea because his counsel mistakenly assumed

that the defendant’s co-conspirator would testify against him at his own trial, which he

did not. Id. Despite acknowledging this tactical mistake on counsel’s part, the district

court refused to let him withdraw the plea, and we agreed. Id. We see no miscalculation

or tactical mistake here; rather, counsel’s advice to Appellant was sound. Therefore, not

only was counsel’s advice that he take the plea reasonable, it was not an error that caused

him any prejudice. Additionally, Appellant put forward no other evidence that his

counsel exerted coercive pressure on him to plead guilty.

       Because Appellant has not met his burden under either of the first two Siddons

factors, the Government did not need to demonstrate that it would have been prejudiced

by the withdrawal of his guilty plea. See Jones, 336 F.3d at 255; United States v. Harris,

44 F.3d 1206, 1210 (3d Cir. 1995). Therefore, we will affirm.




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