                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 15-1193
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                               EDWARD MCLAUGHLIN,
                                           Appellant

                                   ________________

                            On Appeal from the District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 3-12-cr-00179-001)
                      District Judge: Honorable A. Richard Caputo
                                   ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 27, 2015

           Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges

                                  (Filed: April 25, 2016)


                                   ________________

                                       OPINION*
                                   ________________


SCIRICA, Circuit Judge


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Edward McLaughlin pled guilty to conspiracy to use a facility of interstate

commerce to commit a murder for hire and other related federal crimes. He now appeals

denial of his motion to withdraw his guilty plea and sentencing. Because the trial court

neither abused its discretion in denying the motion nor committed plain error in the plea

colloquy, we will affirm the judgment of conviction and sentence.

                                              I.

       In late May 2012, police in Scranton, Pennsylvania responded to a 911 call made

by a victim of domestic violence. They arrested Gary Williams, who was fleeing from an

apartment building after beating his girlfriend Gloria Soto and firing a gunshot from a

Mauser rifle, which he left in the apartment. From the subsequent investigation, police

learned from Soto that Williams had been hired by Edward McLaughlin to kill

McLaughlin’s ex-wife. They also found evidence that McLaughlin supplied Williams

with the Mauser rifle and bullets. McLaughlin and Williams were indicted on federal

crimes and the trial court severed their cases.1

       A federal grand jury charged McLaughlin with nine crimes in its Third

Superseding Indictment: (1) conspiracy to use interstate facilities in the commission of a

murder-for-hire, in violation of 18 U.S.C. § 1958; (2) solicitation to commit a crime of

violence, in violation of 18 U.S.C. § 373; (3) carrying or possessing a firearm during and

in relation to, or in furtherance of a crime of violence as an aider and abettor, in violation

of 18 U.S.C. § 924(c); (4) shipping and transporting a firearm and ammunition while

1
  This case is a companion case to United States v. Williams, No. 14-3839, also decided
today. The facts of the conspiracy are recited more extensively in that case.
                                              2
being subject to a court order, in violation of 18 U.S.C. § 922(g)(8); (5) shipping a

firearm and ammunition after having been convicted of a crime punishable by

imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1); (6)

transferring in interstate commerce a firearm with knowledge that it would be used in a

crime of violence, in violation of 18 U.S.C. § 924(h); (7) shipping and transporting in

interstate commerce a firearm and ammunition knowing or having reason to believe that

a felony is to be committed therewith, in violation of 18 U.S.C. § 924(b); (8) transferring,

giving or transporting a firearm to another person in another state who is not a licensed

importer, dealer or collector of firearms, in violation of 18 U.S.C. § 922(a)(5); and (9)

solicitation to commit a crime of violence (attempting to forcibly tamper with a witness)

in violation of 18 U.S.C. § 373.

       On the first day of trial, McLaughlin pled guilty to Counts 1, 3, and 5. The

government agreed to drop the other charges. The plea agreement set forth these crimes

and the minimum and maximum sentences, including a statutorily imposed minimum five

year prison sentence for Count 3 that must run consecutive to any other sentence. Under

the sentencing guidelines, McLaughlin had a criminal history category of IV, an offense

level of 35, and faced a recommended range of 295-300 months in prison.

       At the guilty plea hearing, McLaughlin testified under oath that he was mentally

competent, that he had reviewed and discussed the plea agreement with his counsel,

understood the plea agreement and his right to a trial, and entered into the plea agreement

voluntarily because he was in fact guilty. The plea agreement contained a merger clause

stating that it represented the only agreement and “supersedes all prior understandings, if

                                             3
any, whether written or oral.” It also stated that “[n]o other promises or inducements

have been made or will be made to the defendant in connection with this case.”

McLaughlin confirmed there were no other side agreements surrounding the plea

agreement. McLaughlin testified he understood that the proposed guidelines set forth in

the plea agreement did not bind the court, and that the court was free to sentence him

outside of any sentencing recommendations.

       After entry of the plea but prior to sentencing, McLaughlin dismissed his attorney

and retained new counsel. He then filed a motion to withdraw his guilty plea, contending

his trial counsel suggested he would only be sentenced to five to eight years of prison.

He also contended he entered into the plea in exchange for an unfulfilled promise by the

government to investigate his allegations that his ex-wife was sexually abusing their three

children.

       At the plea withdrawal hearing, through affidavits and testimony, the government

denied ever making such a promise, and trial counsel denied making a sentencing

prediction. Post-hearing, the court rejected the motion and upheld the guilty plea, noting

that McLaughlin’s efforts to revoke it “undermine[] the integrity of the plea colloquy”

and “treat[] the oath and the process with less solemnity than it deserves.” United States

v. McLaughlin, No. 3:CR-12-0179, 2014 WL 3670545 at *1 (M.D. Pa. July 23, 2014).

At sentencing, the government recommended a sentence of 295 months. The court

sentenced McLaughlin to 240 months in prison.

       McLaughlin now appeals the denial of his motion to withdraw his guilty plea,

contending his counsel was ineffective in giving him advice regarding the expected

                                             4
length of sentence. He also contends the government induced his plea by falsely

promising to investigate his ex-wife on suspicion of child abuse charges. McLaughlin

also raises a new claim not raised before the trial court, namely, the trial court did not

comply with Federal Rule of Criminal Procedure 11 in the plea colloquy.

                                              II.

       A motion to withdraw a guilty plea prior to sentencing may be granted, in the

discretion of the district court, where a “defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d); United States v. Brown, 250 F.3d

811, 815 (3d Cir. 2001). We review the denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003); Brown,

250 F.3d at 815.2 In order to safeguard the integrity of the plea process and ensure that a

defendant’s plea will not be revoked merely for a “change of heart,” we have articulated a

standard to evaluate a “fair and just reason” to justify withdrawal of a plea: “(1) whether

the defendant asserts his innocence; (2) the strength of the defendant’s reasons for

withdrawing the plea; and (3) whether the government would be prejudiced by the

withdrawal.” Jones, 336 F.3d at 252; see United States v. Wilson, 429 F.3d 455, 458 (3d

Cir. 2005); Brown, 250 F.3d at 815.




2
 The district court had subject matter jurisdiction of this criminal case under 18 U.S.C. §
3231, and we have appellate jurisdiction under 28 U.S.C. § 1291.
                                              5
                                            III.

                                             A.

       The trial court found McLaughlin failed to sufficiently assert his innocence as

required by Jones. McLaughlin, 2014 WL 3670545 at *5-6. At the hearing on the

motion to withdraw the guilty plea, McLaughlin asserted his innocence only after

repeated questions from the court. But when he finally said he was innocent,

McLaughlin failed to cite any circumstances or facts in the record supporting his

contention. McLaughlin, 2014 WL 3670545 at *5; see Jones, 336 F.3d at 252

(“Assertions of innocence must be buttressed by facts in the record that support a claimed

defense.” (quoting Brown, 250 F.3d at 818) (internal quotation marks omitted)). As a

consequence, the court concluded that McLaughlin’s assertion of innocence was

insufficient. McLaughlin, 2014 WL 3670545 at *5; see Jones, 336 F.3d at 252

(observing that “[b]ald assertions of innocence are insufficient”). We see no abuse of

discretion.

                                             B.

       As for the strength of McLaughlin’s reasons to withdraw his guilty plea, “[t]he

burden of demonstrating a fair and just reason falls on the defendant, and that burden is

substantial.” Jones, 336 F.3d at 252 (internal quotation marks omitted).

       McLaughlin contends his trial counsel was ineffective—specifically that counsel

told him he could expect a jail sentence of five to eight years in exchange for a guilty

plea. As noted, the Presentence Investigation Report reflected a guideline range of 295-

300 months and McLaughlin was sentenced to 240 months of imprisonment.

                                             6
       In previous cases involving inaccurate sentencing estimates, we have said we “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

(quoting United States v. Day, 969 F.2d 39, 42, 45 (3d Cir. 1992)). Although we

normally do not hear claims of ineffective assistance of counsel on direct appeal, “a

narrow exception to the rule” exists “where the record is sufficient to allow determination

of ineffective assistance of counsel.” Id. at 254 (quoting United States v. Headley, 923

F.2d 1079, 1083 (3d Cir. 1991)). Here, the trial court held a hearing where it considered

McLaughlin’s allegations of ineffective assistance of counsel. This provides us with a

sufficient record to consider the allegations on direct appeal, reviewing for abuse of

discretion.3 See id.

                                             1.

       McLaughlin’s claim fails because he cannot show ineffective assistance of

counsel. McLaughlin points to no evidence other than bare assertions that trial counsel

provided him assurances or even suggested to him that he would receive a sentence of

only five to eight years. Under oath, trial counsel strenuously denied making such a

promise or prediction. Trial counsel testified that he expressed hope McLaughlin would

3
  Although we review the ultimate decision to deny the motion to withdraw for abuse of
discretion, we review underlying factual findings for clear error. United States v.
Richards, 674 F.3d 215, 223 (3d Cir. 2012) (“The abuse-of-discretion standard
incorporates . . . clear-error review of questions of fact.”) (quoting United States v.
Legros, 529 F.3d 470, 474 (2d Cir. 2008)).
                                             7
be sentenced to less than the Guidelines range of 295-300 months, but this is a different

matter entirely. Nor is there any evidence the government suggested to McLaughlin he

would receive such a sentence in exchange for pleading guilty. The government testified

it was unaware of any such promise. Instead, the record shows the government agreed to

dismiss all but Counts 1, 3 and 5, not bring any new charges in connection with the case,

and recommend a “sentence up to and including the maximum sentence allowed by law.”

We see no error, let alone clear error. The court did not abuse its discretion.

       Furthermore, at the plea colloquy, the court extensively questioned McLaughlin to

verify that his plea was knowing and voluntary and that he understood the consequences

of pleading guilty. And in response to the court’s question about whether McLaughlin

was satisfied with the “advice and representation” of his counsel, he replied that his

lawyer was “outstanding.” The court specifically told McLaughlin that it could “impose

a sentence that may be more severe than the one you expect.” McLaughlin points to no

evidence other than bare assertions that trial counsel provided him with an erroneous

sentencing prediction, but nonetheless “we have long held that an erroneous sentencing

prediction by counsel is not ineffective assistance of counsel where . . . an adequate plea

hearing was conducted.” See United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007)

(citing Jones, 336 F.3d at 254). We see no error, let alone clear error. The court did not

abuse its discretion.

                                             2.

       McLaughlin next contends he entered into the guilty plea because the government

promised to investigate his ex-wife’s alleged maltreatment of their children. Because the

                                              8
government did not carry out this “promise,” he contends he “received no benefit in

exchange for his guilty plea.” Appellant Br. at 14. The government, however,

strenuously denies that it made such a promise. The FBI agents involved in the case, as

well as McLaughlin’s own trial lawyer, filed affidavits and testified under oath to the

effect that no one promised an investigation into McLaughlin’s ex-wife. McLaughlin,

2014 WL 3670545 at *2-5. Other than McLaughlin’s bare assertions and ambiguous

testimony from his sister, there is nothing in the record to support his claim. We agree

with the court that McLaughlin has not shown the existence of a side promise by the

government.

       Furthermore, the plea agreement contains a merger clause that explicitly bars any

side agreement from the ultimate plea arrangement. As noted, the plea agreement states

that it is the “complete and only” agreement, “supersedes all prior understandings, if any,

whether written or oral,” and that “[n]o other promises or inducements have been made

or will be made to the defendant in connection with this case.” Id. at *7. We see no

error, let alone clear error. The court did not abuse its discretion.

                                             IV.

       Finally, McLaughlin raises for the first time a claim that the court violated the

procedures set forth in Rule 11 during the plea colloquy. Specifically, McLaughlin

contends the court failed to advise him during the plea colloquy that any false statements

he made while under oath could later be used against him in a perjury prosecution.

McLaughlin did not raise this claim with the trial court, and so we review for plain error.

United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Corso, 549 F.3d 921,

                                              9
926-27 (3d Cir. 2008).

           The purpose of Federal Rule of Criminal Procedure 11 is to ensure that a

defendant’s guilty plea is knowing and voluntary. United States v. Schweitzer, 454 F.3d

197, 202-03 (3d Cir. 2006). “The Rule outlines a series of admonitions and warnings to

be provided to the defendant.” Id. at 202. These directives are designed to ensure that

the defendant understands the gravity of a guilty plea and the consequences of entering

into it.

           Consistent with this holistic approach, the Rule enumerates topics the court must

cover, but it does not require a specific formula of questions. United States v. Cefaratti,

221 F.3d 502, 508 (3d Cir. 2000) (Rule 11 “is not to be read as requiring a litany or other

ritual, and should not be given such a crabbed interpretation that ceremony [is] exalted

over substance” (quoting Fed. R. Crim. P. 11 advisory committee note (1983) Rule

11(h))) (internal quotation marks omitted). Ordinarily, a court will “look to the totality of

the circumstances to determine whether a defendant was informed of the nature of the

charges against him, considering factors such as the complexity of the charge, the age,

intelligence, and education of the defendant, and whether the defendant was represented

by counsel.” Id. Rule 11 itself also reinforces the notion that the plea colloquy is not

meant to be formulaic: “[a] variance from the requirements of this rule is harmless error

if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).

           McLaughlin does not assert that the government threatened to prosecute him for

perjury. Considering the totality of the circumstances, failure to warn McLaughlin about

the consequences of lying under oath did not undermine the adequacy of the plea

                                               10
colloquy. The colloquy was robust, and McLaughlin was competent and understood the

significance of testifying under oath. See Cefaratti, 221 F.3d at 508 (rejecting a claim

that defendant was “not informed of the nature of the charges against him [where] neither

the district court nor the prosecutor explained the elements of” the crime because under

the totality of the circumstances, the court conducted an otherwise thorough colloquy, the

defendant had the advice of a lawyer, and he was able to understand the charges).

Moreover, there is no evidence that McLaughlin was accused of perjury or threatened

with perjury charges.

       We find no plain error, in the court’s failure to warn McLaughlin about the

consequences of perjury because this omission did not affect his “substantial rights.” Id.;

see Fed. R. Crim. P. 11(h). The court substantially complied with Rule 11, McLaughlin

had access to and assistance of counsel, and the court found him competent to testify.4




4
 Because McLaughlin failed to offer sufficient reasons for setting aside his guilty plea,
we need not address the question whether permitting withdrawal would cause the
government undue prejudice. Nevertheless, we believe that the government would be
prejudiced.
       McLaughlin says that the government would not be prejudiced by a withdrawal of
his guilty plea because withdrawal would not cause the unavailability of witnesses or
evidence for a future trial. We do not agree. As the government indicates, it “would
have to reassemble witnesses, court personnel and jurors, all of which had already been
assembled once on the day McLaughlin pleaded guilty.” Appellee Br. at 37. In a similar
case, we held that a defendant causes prejudice to the government when he seeks to
withdraw his plea after pleading guilty on the first day of trial, with witnesses and
evidence already gathered. United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir.
1976).
                                            11
                                           VI.

      For the foregoing reasons, we will affirm the district court’s denial of

McLaughlin’s motion to withdraw his guilty plea and judgment of conviction and

sentence.




                                            12
