                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1266
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Dontre D’Sean McHenry

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 21, 2016
                             Filed: February 24, 2017
                                  ____________

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Dontre D’Sean McHenry pleaded guilty to one count of sex trafficking a minor
in violation of 18 U.S.C. § 1591. The district court1 varied downwards from his
advisory guidelines range, life in prison, and sentenced McHenry to 293 months.


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
McHenry appeals his conviction and sentence, arguing the district court erred in
denying his timely motion to withdraw his guilty plea without an evidentiary hearing;
committed procedural sentencing error by imposing an obstruction-of-justice
enhancement and denying an acceptance-of-responsibility reduction, see U.S.S.G.
§§ 3C1.1 and 3E1.1; and improperly weighed the 18 U.S.C. § 3553(a) sentencing
factors in imposing a substantively unreasonable sentence. We affirm.

                                  I. Background.

       A. McHenry’s Arrest. On March 12, 2014, Minneapolis Police Sergeant
Sherral Schmidt, investigating sex trafficking, discovered an “escort” advertisement
on backpage.com featuring photographs of a girl listed as “Available Now” who
resembled a juvenile previously rescued from sex traffickers and recently reported
missing from her home. Sergeant Grant Snyder reviewed the ad, agreed the girl
looked like a known sex trafficking victim, and called the phone number listed in the
ad to set up a “date.” A female answered, identified herself as “Honey,” and told
Sergeant Snyder to get a hotel room and call her back. Believing the ad depicted a
known juvenile being exploited by sex traffickers, Snyder submitted an Exigent
Circumstance Request Form (“E911 Form”) to T-Mobile, the service provider for the
cell phone number listed in the advertisement. Snyder certified that an emergency
existed because a “Juvenile sex trafficking victim [was being] held against her will
and trafficked by organized conspiracy.” T-Mobile advised that it listed Tony Brown
as the subscriber for the phone. T-Mobile also provided real-time location data for
the phone number, which soon informed officers that the victim’s likely location was
a Motel 6 in Roseville, Minnesota.2

      2
        The Stored Communications Act authorizes an electronic communication
service provider to disclose subscriber information to a law enforcement officer “if
the provider, in good faith, believes that an emergency involving danger of death or
serious physical injury to any person requires disclosure without delay of information
relating to the emergency.” 18 U.S.C. § 2702(c)(4). Snyder requested current

                                         -2-
       When the officers arrived at the Motel 6, staff provided information indicating
the juvenile was in room 114, recently rented to Jennifer VonHagen. Observing
VonHagen leaving room 114, Sergeant Snyder showed her the advertisement pictures.
VonHagen said the juvenile in the ad was in room 114 with an adult male and
consented to officers entering the room. Inside, the officers found McHenry with
J.E., a 17-year-old juvenile female. J.E. was not the known juvenile they were
expecting to find, but J.E. confirmed that the ad depicted photographs of her for the
purpose of soliciting sex for money. The officers arrested McHenry, finding a small
amount of methamphetamine and a Visa card used to pay for the ad. They secured
the room and applied for a search warrant. Minneapolis Police executed the warrant
the next day, finding seven cell phones, including the black T-Mobile phone
referenced in the advertisement. A subsequent warrant search of the phone revealed
that the settings listed J.E.’s email account, and that J.E. used the phone’s Instagram
application. According to VonHagen, McHenry used a different phone.

      McHenry was charged with sex trafficking of minors in violation of 18 U.S.C.
§§ 1591 and 1594(c). The district court appointed attorney Paul Edlund to represent
McHenry at his June 2014 detention hearing. Edlund had successfully defended
McHenry in a state court prosecution charging him with third degree sexual conduct
against a 17-year-old victim, a case dismissed in 2013. The district court detained
McHenry pending trial and ordered him to refrain from contacting any victim because
he had repeatedly called J.E. and had directed his father to visit J.E. A July
superseding indictment charged McHenry with three counts of sex trafficking of a
minor and one count of sex trafficking by force, fraud, or coercion in violation of 18
U.S.C. §§ 1591 and 1594(a).




subscriber information, call detail records with cell site information, and real-time
location of the mobile device. See generally United States v. Caraballo, 963 F. Supp.
2d 341, 346, 350 (D. Vt. 2013), aff’d, 831 F.3d 95, 99-100 (2d Cir. 2016).

                                         -3-
      B. The Suppression Motion. Attorney Edlund filed a motion to suppress all
physical evidence obtained as a result of the “warrantless entry and search of The
Motel 6, Room 114, Roseville, Minnesota on March 12, 2014.” At the August 13
evidentiary hearing, the government introduced the search warrant into evidence
without objection and presented testimony by Officer John Jorgensen Jr. of the
Roseville Police Department. Edlund cross-examined Officer Jorgensen at length
about his contact with VonHagen, and whether he had consent to enter the motel
room and probable cause to arrest McHenry. The defense called no witnesses. The
government argued that the warrant contained evidence of probable cause because
“Sgt. Snyder had been tracking the phone number listed on that Backpage ad, had
made calls, had communication with who he believed to be a minor, identified herself
as honey and they were arranging to set up a date.” Edlund’s post-hearing brief
argued the probable cause and consent issues. On August 26, Magistrate Judge
Franklin Noel issued a Report and Recommendation recommending the motion to
suppress be denied because “GPS data obtained pursuant to a tracking order”
supported a finding that the officers had probable cause to arrest McHenry for
promotion of prostitution. McHenry did not file objections to the Report and
Recommendation, and the district court adopted it. See United States v. McHenry,
2014 WL 4626491 (D. Minn. Sept 15, 2014).

       C. McHenry Pleads Guilty. On October 8, with trial scheduled to begin
October 21, the government sent Edlund a letter setting a deadline of October 10 for
McHenry to accept a plea agreement the government offered on August 13. McHenry
accepted the agreement, pleading guilty to one count of sex trafficking of a minor in
violation of 18 U.S.C. § 1591. At the October 17 change-of-plea hearing, the parties
revised the plea agreement to allow McHenry to challenge a sentencing enhancement,
and the hearing was delayed thirty minutes to allow McHenry to discuss the plea
agreement with attorney Edlund. After the prosecutor and Edlund thoroughly
explained to McHenry the terms of the plea agreement and the rights he was waiving
by pleading guilty, McHenry and attorney Edlund signed the agreement.

                                        -4-
      Before accepting the guilty plea, the district court asked McHenry several
questions to ensure he understood the consequences of pleading guilty:

      THE COURT: . . . First, I want to ask you whether you’re here
      voluntarily to plead guilty today. Are you?

      THE DEFENDANT: Yes.

      THE COURT: And in that sense, has anybody forced you to come here,
      threatened you, coerced you, or done anything to get you to come here
      this morning to plead guilty?

      THE DEFENDANT: No.

                                *   *   *     *   *

      THE COURT: Now, once you plead guilty, it’s very difficult to unplead;
      do you understand that?

      THE DEFENDANT: Yes.

                               *    *   *     *   *

      THE COURT: And that’s why I want to go over some of the very same
      things that you’ve already been asked about. For example, you have a
      right to have counsel here . . . I know Mr. Edlund has been here before
      me a number of times. He’s a very good lawyer. The question for you
      is has he been a good lawyer for you?

      THE DEFENDANT: Yes.

      THE COURT: Has he answered all of your questions?

      THE DEFENDANT: Yes.




                                        -5-
      THE COURT: Has he told you what he thinks would happen if you went
      to trial in this case?

      THE DEFENDANT: Yes.

      THE COURT: Has he told you what he thinks will happen -- he can’t
      know for sure -- but what he thinks will happen under this plea
      agreement?

      THE DEFENDANT: Yes.

      THE COURT: And you’re willing to accept his advice today?

      THE DEFENDANT: Yes.

      THE COURT: Have you had enough time to talk with him to discuss all
      of your concerns?

      THE DEFENDANT: Yes.

The court then accepted McHenry’s plea as knowing and voluntary.

       D. McHenry Moves To Withdraw the Plea. On November 13, 2014,
McHenry sent a pro se letter requesting to withdraw his plea, alleging that Edlund
rarely visited or spoke with McHenry, never explained McHenry’s rights, and
pressured McHenry into pleading guilty. McHenry claimed he had difficulty
understanding the rights he was waiving at the change-of-plea hearing due to his poor
hearing and fetal alcohol syndrome, and he complained that the prosecution was
attempting to add new charges and that the guidelines were not being properly
applied. McHenry followed with another letter dated November 28. On December
5, attorney Edlund moved to withdraw, and the district court appointed new counsel.




                                         -6-
        Following appointment of new counsel, the government produced the E911
Form Sergeant Snyder submitted to T-Mobile to obtain GPS tracking of the cell
phone number listed in the backpage.com advertisement. In a memorandum
supporting McHenry’s pro se motion to withdraw the plea, new counsel argued that
the E911 Form “confirmed that the Minneapolis Police Department did not obtain a
search warrant prior to having T-Mobile place an ‘Emergency 911’ GPS trace on the
cell phone that ultimately led law enforcement to . . . Mr. McHenry.” Therefore,
counsel argued, McHenry had a “fair and just reason” to withdraw his guilty plea, see
Fed. R. Crim. P. 11(d)(2)(B), either because the E911 Form was new evidence
supporting his motion to suppress,3 or because Edlund provided ineffective assistance
in failing to challenge the warrantless search of the cell phone’s location data. In
addition, counsel argued, the combination of McHenry’s hearing impairment, fetal
alcohol syndrome, the short time he was given to consider the plea agreement, his
flawed relationship with Edlund, and confusion during the plea colloquy provided a
fair and just reason to withdraw the plea.

      The district court denied McHenry’s motion to withdraw without a hearing,
concluding first, “the record shows that [McHenry’s] plea was intelligent, knowing,


      3
       This claim is without merit. The government introduced at the suppression
hearing Sergeant Schmidt’s March 12, 2014 state court Application for Search
Warrant and Supporting Affidavit. In that Application, Schmidt averred:

      An exigent tracking order was put up [on] the phone number in the ad.
      The GPS data indicated the phone was at the Motel 6 in Roseville, MN
      and the phone was showing in the north east section of the hotel.

Even if the government did not produce the E911 Form until after new counsel was
appointed, the defense knew no later than the suppression hearing that exigent GPS
tracking of the phone number had led police to Room 114 of the Motel 6, where J.E.’s
admissions resulted in McHenry’s arrest. Magistrate Judge Noel found that the GPS
data supported his finding of probable cause to arrest McHenry.

                                         -7-
and voluntary,” and second, McHenry could not establish he was prejudiced by
Edlund’s failure to raise the GPS tracking issue in the motion to suppress because it
was “undisputed that the cell phone at issue belonged to J.E., and McHenry [did] not
provide any reason why he had a legitimate expectation of privacy in the phone or in
its location.” United States v. McHenry, 2015 WL 2402475, at *4-5 (D. Minn. May
20, 2015). McHenry filed a request to file a Motion for Reconsideration, asserting
that McHenry would testify at an evidentiary hearing that he purchased and used the
black T-Mobile phone, establishing a legitimate expectation of privacy in its location.
The district court denied the request without a hearing. Even if McHenry owned the
cell phone and had a reasonable expectation of privacy in its real-time location
information, the court explained, “law enforcement believed that the number was
associated with a minor trafficking victim,” and therefore exigent circumstances
justified GPS tracking of the phone, and the Stored Communications Act authorized
T-Mobile to disclose this information. The court again stated that “McHenry’s
admission of guilt at the plea hearing was knowing, intelligent, and voluntary,” and
noted that “he has not asserted his innocence of the charges against him.”

                      II. Denial of the Motion to Withdraw.

       McHenry argues the district court abused its discretion in denying the motion
to withdraw his guilty plea and request for reconsideration. “We review both the
denial of a motion to withdraw and the refusal to hold a hearing under the abuse of
discretion standard.” United States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992).
“When a defendant has entered a knowing and voluntary plea of guilty at a hearing
at which he acknowledged committing the crime, the occasion for setting aside a
guilty plea should seldom arise.” Id. (quotation omitted). Even if a defendant shows
a fair and just reason for withdrawal, “the court must consider other factors before
granting the motion, namely, whether the defendant asserts his innocence of the
charge, the length of time between the guilty plea and the motion to withdraw it, and



                                         -8-
whether the government will be prejudiced if the court grants the motion.” United
States v. Cruz, 643 F.3d 639, 642 (8th Cir. 2011) (quotation omitted).

       McHenry argues that he should be allowed to withdraw his plea and relitigate
the motion to suppress. As we have noted, production of the E911 Form after
McHenry pleaded guilty was not newly discovered evidence supporting a claim that
evidence found in the Motel 6 hotel room was the fruit of a Fourth Amendment
violation in tracking the T-Mobile cell phone location. The use of exigent GPS
tracking was disclosed at the suppression hearing, if not sooner. More significantly,
“[a] guilty plea waives all suppression issues not expressly reserved by a conditional
plea.” United States v. Freeman, 625 F.3d 1049, 1052 (8th Cir. 2010). Therefore, “a
belated desire to appeal [or reargue] a suppression ruling is not fair and just reason
warranting the withdrawal of a plea of guilty.” United States v. Smith, 422 F.3d 715,
724 (8th Cir. 2005), cert. denied, 546 U.S. 1127 (2006).

       McHenry responds that Edlund’s ineffective assistance in failing to challenge
GPS tracking of the black T-Mobile cell phone without a warrant provides fair and
just reason for withdrawal of his guilty plea. Edlund’s “performance can serve as the
requisite ‘fair and just reason’ for withdrawal only if [McHenry] demonstrates both
that his attorney’s performance was deficient and that he was prejudiced by it.” Cruz,
643 F.3d at 642 (quotation omitted). To establish prejudice, a defendant who claims
that counsel ineffectively failed to challenge a search or seizure “must prove that the
[Fourth Amendment] claim is meritorious.” United States v. Luke, 686 F.3d 600, 605
(8th Cir. 2012) (citations omitted). “To demonstrate a fair and just reason for
withdrawal of a plea, appellant must do more than desire to contest the search; he
must demonstrate that his position has merit.” United States v. Jones, 479 F.3d 975,
978 (8th Cir. 2007). McHenry cannot meet this rigorous standard.

    As the district court recognized, the record raises substantial doubt that
McHenry had standing to assert Fourth Amendment rights in a cell phone registered

                                         -9-
to another subscriber and being used by J.E. at the time of the GPS tracking. See
United States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014). And even if he had
standing to raise this claim, there is substantial doubt that McHenry had a reasonable
expectation of privacy in cell phone location information voluntarily provided to T-
Mobile. See United States v. Skinner, 690 F.3d 772, 777-81 (6th Cir. 2012). But like
the district court, we can leave those serious questions unanswered. Sergeant
Schmidt and Sergeant Snyder had a good faith belief that exigent circumstances -- a
known juvenile victim of sex trafficking currently being victimized by one or more
traffickers -- justified the request that T-Mobile disclose subscriber information and
conduct exigent GPS tracking of the cell phone number, as authorized by the Storage
Communications Act. See United States v. Gilliam, 842 F.3d 801, 805 (2d Cir. 2016)
(“exigent circumstances based on credible information” of child prostitution justified
obtaining cell phone location information without a warrant); Caraballo, 831 F.3d at
104-06.

      McHenry further contends that Edlund’s failure to prepare McHenry for the
change-of-plea hearing, his confusion about the plea and deficient hearing, and his
lack of adequate time to consider pleading guilty provided fair and just reason to
withdraw the plea. This contention is “plainly contradicted by the Rule 11 colloquy
at [McHenry’s] change-of-plea hearing.” United States v. Trevino, 829 F.3d 668, 672
(8th Cir. 2016); see Cruz, 643 F.3d at 642-43; United States v. Green, 521 F.3d 929,
932 (8th Cir. 2008). Allegations that contradict a defendant’s statements at the
change of plea hearing “are inherently unreliable.” United States v. Harris-
Thompson, 751 F.3d 590, 603 (8th Cir.), cert. denied, 135 S. Ct. 415 (2014).

       The district court expressly found at the change-of-plea hearing and in denying
the motion to withdraw that McHenry entered a knowing, intelligent, and voluntary
guilty plea. Tellingly, McHenry has never asserted his innocence of the crime which
he admitted committing. The district court did not abuse its discretion in denying the
motion to withdraw and request for reconsideration without a hearing.

                                        -10-
                               III. Sentencing Issues.

       A. Alleged Procedural Errors. The advisory guidelines provide for a 2-level
adjustment if the defendant “willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Examples of
conduct to which this adjustment applies include “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so.” Id. at comment. n.4(A).

      The district court’s June 2014 Order for Detention ordered that McHenry “shall
have no contact either directly or indirectly . . . with any of the named and unnamed
victims and witnesses, including J.E., N.A., J.V., and K.P.” The August 2014 Plea
Agreement provided that McHenry “understands and agrees . . . that the Court is
required to order the defendant to make restitution to the victims of his crime.” While
awaiting sentencing, McHenry sent a long letter from jail to J.E., the victim of his
offense of conviction. Toward the end, McHenry wrote: “if you could look out for
me one last time sweetheart and send me a couple dollars. Anything would help.”

       The Presentence Investigation Report recommended an obstruction of justice
adjustment based on this letter. McHenry timely objected. The district court
overruled the objection, finding that McHenry’s conduct met the obstruction of
justice standards because, “[i]n the letter, [McHenry] manipulates the victim[],
attempts to re-establish their relationship, and asks her for money, and acknowledges
there is a no contact order in place.” On appeal, McHenry argues the district court
erred in finding that his conduct constituted obstruction of justice because his “asking
for help and financial support . . . is more similar to the examples of non-obstructive
conduct set forth at Application Note 5” to § 3C1.1. We disagree.




                                         -11-
       When he wrote the letter, McHenry had agreed that the court could order him
at sentencing to pay restitution to J.E., the victim of his offense. J.E. was entitled to
participate in the restitution proceedings, for example, by filing an affidavit relating
to the amount of her loss. See 18 U.S.C. § 3664(d)(2)(A)(vi). Thus, McHenry’s pre-
sentencing letter begging J.E. to send him money not only violated the court’s no-
contact order, but was also an unlawful attempt to influence a prospective witness in
the sentencing proceedings. Indeed, the attempt may well have been successful, as
the district court’s Judgment in a Criminal Case recites that mandatory restitution was
not being ordered “because the victim[] elected to not participate in any phase of
determining the restitution order (18 U.S.C. § 3664(g)(1)).” The district court did not
clearly err in imposing the obstruction of justice adjustment. See United States v.
Replogle, 628 F.3d 1026, 1029-30 (8th Cir.), vacated on other grounds, 132 S. Ct.
401 (2011), adhered to, 678 F.3d 940 (8th Cir. 2012).

       The guidelines provide for a 2-level reduction “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
When the defendant’s conduct results in an obstruction of justice adjustment, he does
not qualify for an acceptance of responsibility reduction except in “extraordinary
cases.” Id. at cmt. n.4. The district court imposed the obstruction of justice
adjustment and denied McHenry an acceptance of responsibility reduction, finding
that the “conduct in violation of his no contact order indicate[d] his lack of
acceptance of responsibility,” and no extraordinary circumstances warranted an
exception to the general rule. On appeal, McHenry argues the district court erred by
imposing the obstruction of justice adjustment and therefore he should have received
the acceptance of responsibility reduction. As we have upheld the obstruction of
justice adjustment, the district court did not clearly err in denying acceptance of
responsibility. In addition, we note that, during allocution at sentencing, McHenry
stated, “I would like the record to show that I do not want this plea, and I wish to
withdraw my plea.” “A defendant’s attempt to withdraw his guilty plea may be



                                          -12-
evidence that he did not accept responsibility for his offense.” United States v.
Bastian, 603 F.3d 460, 465 (8th Cir. 2010).

       B. Substantive Reasonableness. McHenry argues the district court abused
its discretion and imposed a substantively unreasonable sentence when it failed to
consider all the 18 U.S.C. § 3553(a) sentencing factors and gave inadequate weight
to mitigating factors -- his untreated depression, self-medicating with alcohol and
drugs, and fetal alcohol syndrome. McHenry’s sentence of 293 months in prison,
though clearly substantial, was a substantial downward variance from his advisory
guidelines sentence of life in prison. “[I]t is nearly inconceivable that the court
abused its discretion in not varying downward still further.” United States v.
Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). After careful review of the record, we
conclude the district court did not abuse its wide sentencing discretion. See United
States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014).

      The judgment of the district court is affirmed.
                     ______________________________




                                       -13-
