                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 11-1419
                                    _______________

                           UNITED STATES OF AMERICA

                                            v.

                                  CHARLES HOGAN
                                     a/k/a SNAP

                                  CHARLES HOGAN,
                                             Appellant
                                   _______________

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                    (D.C. Criminal Action No. 2-06-cr-00537-002)
                     District Judge: Honorable Paul S. Diamond
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 17, 2011
                                  _______________

             Before: RENDELL, AMBRO, and NYGAARD, Circuit Judges

                           (Opinion filed: November 29, 2011)
                                   _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Charles Hogan was convicted and sentenced in the District Court of conspiracy to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846, and
possession of five or more kilograms of cocaine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1). He contends that the Court abused its discretion in denying his

motion to withdraw his guilty plea prior to sentencing. We disagree, and thus affirm.1

                                              I.

       As we write solely for the parties, we recite only those facts necessary to our

decision. After his arrest, Hogan retained Joseph Santaguida to represent him. The

Government filed a notice pursuant to 21 U.S.C. § 851 that identified two prior felony

drug convictions, increasing the statutory mandatory minimum term of imprisonment

from ten years to life imprisonment. Hogan entered into a plea agreement with the

Government, in exchange for which the Government agreed to dismiss the Section 851

notice and file an amended notice charging only one prior felony conviction, reducing the

statutory mandatory minimum term of imprisonment to twenty years.

       At the change-of-plea hearing, Hogan was represented by Brian McQuigan, an

attorney who worked in Santaguida‟s law firm. At the hearing, Hogan stated that he was

satisfied with McQuigan‟s representation, that he had ample time to discuss his case and

plea agreement with McQuigan, that he understood the terms and conditions of the plea

agreement, and that he was guilty. He also confirmed that he understood the mandatory

minimum sentence, and that the District Court could impose a sentence less or more

severe than the United States Sentencing Guidelines‟ advisory range. The plea

agreement accurately states the mandatory minimum sentence, and confirms that Hogan


1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
                                             2
was satisfied with his counsel‟s representation and had not been promised or guaranteed

what sentence the Court would impose.

       Less than a week before the scheduled sentencing date,2 Hogan filed a motion to

withdraw his guilty plea, contending that he did not have adequate opportunity to review

the plea agreement and was provided ineffective assistance of counsel. He argued that

counsel was ineffective because (1) he was represented at the change-of-plea hearing by

an attorney who worked in his retained counsel‟s office but who was not his retained

counsel, (2) this “substitute counsel” led him to believe that he could be sentenced to less

than twenty years‟ imprisonment and that the plea agreement would reduce his

mandatory minimum sentence, and (3) this “substitute counsel” failed to challenge the

amended Section 851 notice. After being advised that Hogan did not wish to testify in

support of his motion, the District Court denied the motion without conducting a hearing.

                                             II.

       The District Court‟s ruling on a motion to withdraw a guilty plea prior to

sentencing is reviewed for abuse of discretion. United States v. Jones, 336 F.3d 245, 252

(3d Cir. 2003). The defendant bears the burden of demonstrating a “fair and just reason”

for withdrawing the plea. Id. This burden is substantial: “A shift in defense tactics, a

change of mind, or the fear of punishment are not adequate reasons to impose on the


2
  In the interim, Hogan sent two letters to the District Court. The first requested new
counsel, which the Court appointed. The second stated that the stipulation in the plea
agreement as to the quantity of cocaine included cocaine for which he was not
responsible. Regardless of the quantity of cocaine for which Hogan was responsible,
taking into account the amended Section 851 notice citing one prior felony drug
conviction, the mandatory minimum term of imprisonment was twenty years.
                                             3
government the expense, difficulty, and risk of trying a defendant who has already

acknowledged his guilt by pleading guilty.” Id. (quoting United States v. Brown, 250

F.3d 811, 815 (3d Cir. 2001)).

       We consider three factors in evaluating whether to grant a withdrawal:

“(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.” Id. As to the first factor, “[o]nce a defendant has pleaded guilty, he

„must then not only reassert innocence, but give sufficient reasons to explain why

contradictory positions were taken before the district court and why permission should be

given to withdraw the guilty plea and reclaim the right to trial.‟” Id. at 253 (quoting

United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992)). A defendant is permitted to

withdraw a plea based on ineffective assistance of counsel only upon showing that “his

attorney‟s advice was under all the circumstances unreasonable under prevailing

professional norms,” and that “he suffered „sufficient prejudice‟ from his counsel‟s

errors.” Id. at 253-54 (quoting United States v. Day, 969 F.2d 39, 45 (3d Cir. 1992)). If

the defendant does not demonstrate sufficient grounds for withdrawing the plea, the

Government is not required to show prejudice. United States v. Martinez, 785 F.2d 111,

116 (3d Cir. 1986).

       Not only did Hogan not assert his innocence,3 but his other reasons do not provide

a valid basis for withdrawing his plea. The plea agreement and Hogan‟s testimony at the


3
 Hogan argues that our requirement that a defendant assert his or her innocence and
explain contradictory positions taken in the prior proceedings goes beyond the “fair and
                                             4
change-of-plea hearing contradict his assertions that he did not have an adequate

opportunity to review the plea agreement, that he was prejudiced by McGuigan‟s

representation, and that he was led to believe that he would receive less than a twenty-

year sentence and the plea agreement would reduce his mandatory minimum sentence.

Moreover, even if McGuigan inaccurately stated the potential sentence and otherwise

provided less able legal representation than that which would have been provided by

Santaguida, Hogan was not prejudiced by this representation.

       Finally, the amended Section 851 notice identifies Hogan‟s 1988 conviction for a

felony drug offense as his only prior felony conviction. Section 851 precludes any

challenge to the validity of a prior conviction that occurred more than five years before

the date of the information alleging the prior conviction. 21 U.S.C. § 851(e). The

amended Section 851 notice reduced Hogan‟s mandatory minimum sentence from life

imprisonment to twenty years. There was no reason for Hogan‟s counsel to challenge the

amended notice.

                                     *   *   *   *   *

       The District Court did not abuse its discretion in denying Hogan‟s motion to

withdraw his guilty plea prior to sentencing. Thus we affirm.




just reason” standard of Fed. R. Crim. P. 11. Though we previously held that an assertion
of innocence is not necessarily a prerequisite to the withdrawal of a plea, we later stated
that a defendant must assert his or her innocence. See, e.g., Jones, 979 F.2d at 318;
United States v. Stayton, 408 F.2d 559, 561 n.5 (3d Cir. 1969). We do not need to
address this issue, however, because, even absent an assertion of innocence, Hogan has
failed to provide a “fair and just reason” for withdrawing his plea.
                                             5
