                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              ______________

                                    No. 12-2990
                                  ______________

                         UNITED STATES OF AMERICA

                                          v.

                      DIONICIO RAFAEL CRUZ VALERIO,
                      a/k/a Miguel Francisco Acevedo Meran,
                               a/k/a Captain Johnny

                                      Dionicio Rafael Cruz Valerio,
                                                      Appellant
                                 _______________

                     Appeal from the United States District Court
                            For the District of New Jersey
                             (D.C. No. 09-cr-00476-001)
                      District Judge: Honorable Jose L. Linares
                                  ______________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 13, 2013

     Before: McKEE, Chief Judge, AMBRO and GREENBERG, Circuit Judges

                          (Opinion Filed October 18, 2013)

                                  ______________

                                     OPINION
                                  ______________


MCKEE, Chief Judge
       Dionicio Rafael Cruz Valerio appeals the judgment of sentence that was entered

after the District Court granted his pro se request to withdraw his motion to substitute

counsel, and denied his motion to withdraw his guilty plea. For the reasons that follow,

we will affirm.1

       Because we write primarily for the parties who are familiar with this case, we need

not recite the procedural history or factual background.

       We review a district court’s ruling on a motion to substitute counsel for an abuse

of discretion. United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995). Although

Cruz Valerio withdrew his motion to substitute counsel, he now contends the district

court erred in not engaging in a two-step inquiry pursuant to United States v. Welty, 674

F.2d 185 (3d Cir. 1982), before ruling on that motion. Under Welty, a district court must

inquire into the reason for a defendant’s request to substitute counsel, and then determine

whether “good cause” is shown to support the request. Goldberg, 67 F.3d at 1098. If the

court denies the request, it must give the defendant the choice between representation by

an attorney with whom s/he is dissatisfied or proceeding pro se. Welty, 674 F.2d at 187.

       Cruz Valerio’s reliance upon the Welty inquiry is completely misplaced. The

appellant in Welty was forced to choose between proceeding to trial with no attorney or

an attorney he did not want. The result was a purported waiver of counsel without the

kind of thorough and careful inquiry that would have determined whether the waiver was

a knowing and voluntary relinquishment of a fundamental right.


1
 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and we
have jurisdiction pursuant to 28 U.S.C. § 1291.

                                             2
         Cruz Valerio was not forced to choose between proceeding pro se or accepting

counsel with whom he was dissatisfied. Rather, having filed a motion for substitute

counsel, Cruz Valerio then changed his mind and asked the court to allow him to

withdraw that motion. His complaint now is that the District Court did exactly what he

asked.

         Cruz Valerio rests his Welty claim on the District Court’s alleged failure to “make

the inquiry . . . as required by . . . Welty.” Appellant’s Br. at 12. However, as we have

just explained, Welty requires no such inquiry when a defendant requests he be allowed to

withdraw his motion to substitute counsel. Allowing a defendant to withdraw a motion to

substitute one counsel for another does not implicate the kind of constitutional concerns

that framed the analysis in Welty, and the district court clearly did not abuse its discretion

by granting Cruz Valerio’s own motion.2

         Cruz Valerio also challenges the district court’s denial of his motion to withdraw

his guilty plea. We once again review for an abuse of discretion. United States v. King,

604 F.3d 125, 139 (3d Cir. 2010). A defendant may withdraw his guilty plea after it has

been accepted by the court, but before the court sentences the defendant, if the defendant

carries the “‘substantial’ burden . . . of showing a fair and just reason for the withdrawal


2
  Cruz Valerio also attempts to establish that there was a procedural irregularity because
“[t]he Appellant’s pro se motion for substitution of counsel was not properly before the
District Court . . . .” Appellant’s Br. at 16. However, the District Court clearly
questioned Cruz Valerio about his willingness to withdraw the motion “if it should be
received.” And he responded: “Yes, I’m going to proceed with [current counsel].”
App’x II at 323. He also argues that the Assistant United States Attorney did not have
notice of the motion to substitute counsel. However, his attempt to fashion an abuse of
discretion from this under the circumstances here is frivolous.

                                              3
of his plea.” Id. (citing Jones v. United States, 336 F.3d 245, 252 (3d Cir. 2003); Fed. R.

Crim. P. 11(d)(2)).3

       Pursuant to our three-factor test first propounded in United States v. Brown, 250

F.3d 811, 815 (3d Cir. 2001), when considering whether a defendant has a “fair and just

reason” for the withdrawal, a district court must consider: (1) whether the defendant

asserts his innocence, (2) whether strong reasons exist for the withdrawal, and (3)

whether the government would be prejudiced if a withdrawal was granted. Mendoza v.

United States, 690 F.3d 157, 160 (3d Cir. 2012) (citations omitted), cert. denied, 133 S.

Ct. 1456, 185 L. Ed. 2d 362 (2013). However, any prejudice to the government is

irrelevant unless the defendant satisfies his burden on the first two prongs. United States

v. Martinez, 785 F.2d 111, 116 (3d Cir. 1986). This three-factor test applies equally to a

motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel.

Jones, 336 F.3d at 252-55.

       Cruz Valerio’s claim is unique. He is not asserting that he is not guilty of the

crime he was charged with and to which he plead guilty. Rather, he is arguing that his

sentencing range should not have been increased based on a “leadership role” in the

offense and that this finding in turn made him ineligible for the “safety valve.”

Appellant’s Br. at 27-28. We do not interpret that as a claim of actual innocence as

required under Brown.


3
  Cruz Valerio’s initial assertion, that the failure of the District Court to perform a Welty
inquiry required the District Court to lessen his burden, is without merit for the
aforementioned reasons.


                                              4
       Cruz Valerio argues that a strong reason exists to withdraw his plea because his

attorney never informed him of plea offers that would have resulted in a less severe

sentence than he received. However, the district court credited testimony that the

government offered four separate plea agreements to Cruz Valerio through his attorney,

the third of which was its “best and final offer,” allowing Cruz Valerio to plead to an

offense level of 29 without “safety valve” eligibility. The record is clear that this plea

agreement was relayed to Cruz Valerio by his attorney, but Cruz Valerio rejected the

offer. The District Court underscored that any error in the attorney’s conduct in failing to

communicate with Cruz Valerio for a lengthy period of time after he received the initial

plea offer did not prejudice Cruz Valerio because the subsequent plea offers that were

communicated and discussed were more favorable.

       Moreover, to the extent that the argument turns on a claim of a Sixth Amendment

deprivation of the right to counsel, we will not entertain it on direct appeal. Rather, such

claims are usually raised in collateral proceedings, United States v. McLaughlin, 386 F.3d

547, 555-56 (3d Cir. 2004), and we see no reason to invoke the narrow exception to that

practice under the circumstances here.

       Accordingly, the district court correctly concluded that Cruz Valerio did not carry

his “substantial burden[,]” King, 604 F.3d at 139, required to justify withdrawing his

guilty plea. It is therefore unnecessary to inquire into the third prong, prejudice to the

government. Martinez, 785 F.2d at 116.4


4
 Cruz Valerio also contends that his plea of guilty was involuntary because he was
essentially coerced by his attorney. The district court rejected that claim based on the

                                              5
      For the foregoing reasons, we will affirm the judgment of sentence.




testimony of Cruz Valerio’s attorney. There is nothing in the record that would lead us to
question that conclusion. It is well-settled that a guilty plea is not coerced when a
defendant is motivated by avoiding the possibility that he will be convicted at trial and
face a higher authorized penalty. Brady v. United States, 397 U.S. 742, 750-51, 90 S. Ct.
1463, 1470, 25 L. Ed. 2d 747 (1970). That is the only “coercion” we see here.

                                            6
