                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               July 27, 2005
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                    Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                No. 05-1002
                                                     (D. Ct. No. 03-CR-496-D)
 ADAM L. BABCOCK,                                            (D. Colo.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McWILLIAMS, and HARTZ, Circuit
Judges.


      Defendant-Appellant Adam L. Babcock pleaded guilty to assault resulting

in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). At the beginning of

his sentencing, he made an oral motion to withdraw the plea, which was denied by

the District Court. Mr. Babcock appeals that decision. We take jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                               I. BACKGROUND

      Mr. Babcock and his co-defendant, Jason Greer, were charged with two

counts of assault and with aiding and abetting in both charges of assault. See 18

U.S.C. §§ 2, 113(a)(1), and 113(a)(6). Mr. Babcock pleaded guilty to the

§ 113(a)(6) assault. The plea agreement described how, at the time Mr. Babcock

and Mr. Greer were inmates at the U.S. Penitentiary in Florence, Colorado, they

approached a fellow prisoner, beat him, and stabbed him repeatedly with a

makeshift “shank” before correctional officers broke up the fight.

      At the beginning of Mr. Babcock’s sentencing hearing, he made two

motions through his counsel: first, a motion to withdraw his plea of guilty;

second, a motion for the withdrawal and replacement of his attorney. During the

hearing, however, Mr. Babcock’s counsel expressed serious doubts about the

merits of both of his client’s motions:

      I must advise this court as an officer of the Court that I don’t know
      of any fair and just reason why the Court should allow the
      withdrawal of the plea. And I believe it’s my duty as an officer of
      the Court when my client asks that I request permission of the Court
      to withdraw, that I make that request.

The court inquired about the legal basis for Mr. Babcock’s request to withdraw

the plea and discussed the legal standard for withdrawal. In response to the

court’s subsequent direct inquiry of Mr. Babcock’s “objective here with these

maneuvers at the eleventh hour,” Mr. Babcock expressed his desire to “file some


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motions that I feel will be to my benefit,” which his counsel clarified as a desire

to move to dismiss the prosecution based on selective prosecution. The District

Court denied both the motion to withdraw the plea and the motion for counsel to

withdraw.

      On appeal, Mr. Babcock argues that his desire to move to dismiss based on

a claim of selective prosecution is a fair and just reason for withdrawal, and that

the District Court failed to make sufficient inquiry into the basis for his request to

withdraw the plea.

                                 II. DISCUSSION

      Under Fed. R. Crim. P. 11(d)(2)(B), a defendant may withdraw a plea of

guilty prior to sentencing if he can demonstrate a “fair and just reason” for doing

so. This Court considers seven factors influential to its consideration of whether

a defendant has stated a fair and just reason:

      (1) whether the defendant has asserted his innocence; (2) whether
      withdrawal would prejudice the government; (3) whether the defendant
      delayed in filing his motion, and if so, the reason for the delay; (4) whether
      withdrawal would substantially inconvenience the court; (5) whether close
      assistance of counsel was available to the defendant; (6) whether the plea
      was knowing and voluntary; and (7) whether the withdrawal would waste
      judicial resources.

United States v. Sandoval, 390 F.3d 1294, 1299 (10th Cir. 2004). We review the

District Court’s decision for abuse of discretion. United States v. Jones, 168

F.33d 1217, 1219 (10th Cir. 1999).


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      To begin, Mr. Babcock contends that he was selectively prosecuted. We

note that this is not a factor under Sandoval that may justify a withdrawal. As

such, this argument must fail as a ground to reverse the denial of the motion to

withdraw the plea. Thus, we construe this argument as an independent basis for

reversal, which we review de novo. United States v. Solomon, 399 F.3d 1231,

1239 (10th Cir.2005). A successful motion to dismiss based on a claim of

selective prosecution requires evidence of both selectivity and a constitutionally

impermissible basis for selectivity. Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978) (“[T]he conscious exercise of some selectivity in enforcement is not in

itself a federal constitutional violation so long as the selection was [not]

deliberately based upon an unjustifiable standard such as race, religion, or other

arbitrary classification.”).

      Here, Mr. Babcock offers no evidence of selectivity, let alone selectivity

based on impermissible factors. Mr. Babcock and Mr. Greer were co-defendants

charged with the exact same crimes, and there were no other participants in the

assault. Although Mr. Babcock contends that he wanted to enter a motion to

dismiss “presumably [because] other inmates similarly situated and in similar

alleged assaults were not prosecuted,” he offers no facts in support of his theory

of selectivity. It is far more likely that, as the government suggests, Mr. Babcock

and Mr. Greer were prosecuted simply because the guards witnessed the incident


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firsthand.

      Next, Mr. Babcock offers no legal support for his contention that the

District Court should have conducted a more lengthy inquiry about the basis for

his motion to withdraw the plea, and he offers no facts that suggest a more

lengthy inquiry would have produced a different result.

      Finally, Mr. Babcock does not explicitly raise any of the Sandoval factors

in support of his appeal. He briefly addresses the countervailing elements,

asserting that a withdrawal of plea would cause no prejudice to the government,

no substantial inconvenience to the court, and no waste of judicial resources, but

he bases his argument on the government’s routine statement that it was ready and

able to proceed to trial. Moreover, the absence of prejudice carries no weight if

Mr. Babcock has not advanced a fair and just reason in favor of withdrawal. See

United States v. Rhodes, 913 F.2d 839, 845 (stating that defendant bears the

burden for demonstrating a “fair and just reason” for withdrawing his plea).

Therefore, we conclude that the District Court did not abuse its discretion in

denying Mr. Babcok’s motion to withdraw his guilty plea.




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                      III. CONCLUSION

For the foregoing reasons, we AFFIRM.

                             ENTERED FOR THE COURT,


                             Deanell Reece Tacha
                             Chief Circuit Judge




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