                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2839
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Kristopher Hatch

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Southern District of Iowa - Council Bluffs
                                  ____________

                               Submitted: April 4, 2017
                                 Filed: June 8, 2017
                                   [Unpublished]
                                   ____________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Kristopher Hatch appeals, challenging the district court's1 denial of his motion
to withdraw his guilty plea. We affirm.

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
       In December 2015, a grand jury charged Hatch, along with several others, with
multiple drug conspiracy, possession, and firearms charges. Pursuant to a plea
agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),2 Hatch pled guilty
to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846; and one count of felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The plea agreement prescribed
a sentence of 151 months' imprisonment.

        Following Hatch's plea, the presentence investigation report (PSR) calculated
Hatch's suggested Guidelines sentence applying a career-offender enhancement and
an armed-career-offender enhancement under the Armed Career Criminal Act
(ACCA), which carried a fifteen-year (180-month) mandatory minimum. Hatch then
filed a motion to withdraw his plea claiming that the plea agreement had been
"nullified." The government did not resist this motion, informing the district court
that at the time the parties entered into the plea agreement, they were "unaware" that
Hatch qualified as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1), and
that this change of events prohibited the court from enforcing the agreed-upon 151-
month sentence in the plea agreement. At the hearing on the motion, the district court
determined that the armed-career-offender provision did not apply to Hatch, and thus
Hatch's counsel sought to withdraw his pending motion to withdraw the plea. The
district court denied the motion as moot and held that it would proceed under the
original plea agreement.

       In May, Hatch submitted a pro se letter to the court, and newly appointed
counsel filed a second motion to withdraw the plea, both claiming ineffective
assistance of counsel and questioning the fairness of the plea agreement. The


      2
       A Rule 11(c)(1)(C) plea agreement binds not only the government and the
defendant, but also the court if the court accepts the agreement. United States v.
Scurlark, 560 F.3d 839, 841-42 (8th Cir. 2009).

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government resisted the motion. The district court denied the motion, holding that
Hatch did not establish that his previous counsel's assistance was ineffective or that
he was prejudiced, and that he failed to establish a fair and just reason for withdrawal
of his plea. The court additionally held that given the record and Hatch's criminal
history, the sentence stipulated to in the agreement (151 months) was significantly
lower than what would likely result under the Guidelines, making it even more
difficult to discern any ineffective assistance of counsel.

       At sentencing, Hatch again renewed his request to withdraw the plea and
additionally testified about his concerns with his counsel's effectiveness, certain
alleged errors of fact in the PSR, his belief that there was insufficient proof of drug
amounts attributed to him in this matter, and his own differing calculations regarding
the suggested Guidelines sentence. The district court sentenced Hatch to 151 months'
imprisonment pursuant to the joint recommendation of the parties contained in the
Rule 11(c)(1)(C) plea agreement. Hatch appeals, arguing he had fair and just reasons
for withdrawing his plea and the district court should have allowed him to do so.

        A defendant may withdraw a plea of guilty before the court imposes sentence
if the defendant can show a "fair and just reason for requesting the withdrawal." Fed.
R. Crim. P. 11(d)(2)(B). "While the standard is liberal, the defendant has no
automatic right to withdraw a plea." United States v. Van Doren, 800 F.3d 998, 1001
(8th Cir. 2015) (quoting United States v. Heid, 651 F.3d 850, 853 (8th Cir. 2011)).
The burden is on the defendant to establish the fair and just grounds for the
withdrawal of a guilty plea. United States v. Haubrich, 744 F.3d 554, 557 (8th Cir.
2014). This court reviews the denial of a defendant's motion to withdraw a guilty
plea for an abuse of discretion. United States v. Briggs, 820 F.3d 917, 920 (8th Cir.
2016), cert. denied, 137 S. Ct. 617 (2017).

       Hatch claims his counsel was ineffective. "This can be a fair and just reason
for withdrawal if the defendant can demonstrate both that counsel's performance was

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deficient and that the deficiency prejudiced the defendant." Haubrich, 744 F.3d at
557. During Hatch's initial change-of-plea hearing the magistrate judge3 questioned
Hatch extensively about his knowledge of the pending charges, the evidence that
would likely be presented should the matter proceed to trial, Hatch's plea agreement,
and Hatch's decision to plead guilty. During that colloquy Hatch acknowledged that
he was "fully satisfied" with his counsel's performance during the negotiation of the
plea and during the change-of-plea hearing. "A defendant's 'failure to assert any
objections to counsel's performance at his change-of-plea hearing refutes any claim
of ineffective assistance of counsel as a basis for withdrawing his plea.'" Id. (quoting
United States v. Hughes, 16 F.3d 949, 951 (8th Cir. 1994)). Hatch's testimony at the
change-of-plea hearing refutes his current claim that his first attorney lied to him and
misled him during plea negotiations. The district court did not abuse its discretion
in finding that Hatch failed to establish that his counsel's performance was deficient
and that the deficiency prejudiced him.

       Also on appeal, Hatch again challenges the failure of counsel to raise certain
"viable" defenses, the drug quantity attributed to him, and the alleged lack of
evidence of his ownership of the home where the weapon attributed to him was
found. These arguments fail. First, Hatch admitted under oath the factual basis for
the charges, affirmed his full satisfaction with his attorney, and reiterated his
willingness to enter into the plea agreement. Second, after the change-of-plea
hearing, the district court thoroughly addressed these arguments when it addressed
Hatch's second motion to withdraw his plea, and again when it discussed them at
sentencing, noting that even if it were to credit some of the issues raised by Hatch
following the change-of-plea hearing, the Guidelines range would still be a range
significantly higher than the 151 months agreed to in the plea. Hatch also renews his
claim that the government acted in bad faith and tried to nullify the plea agreement


      3
      The Honorable Helen C. Adams, United States Magistrate Judge for the
Southern District of Iowa.

                                          -4-
after the PSR included the armed-career-offender enhancement under the ACCA.
The district court appropriately disposed of that claim when it noted that the parties
entered into the Rule 11(c)(1)(C) agreement before the government raised the issue
of the ACCA's potential applicability and thus this issue had no bearing on the plea
agreement whatsoever. Carefully reviewing the entirety of the record, we find no
abuse of discretion in the district court's determination that Hatch failed to establish
fair and just grounds for the withdrawal of his guilty plea.

      For these reasons, we affirm.
                      ______________________________




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