In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2749

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SIMON A. LUNDY, SR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03-CR-10064—Michael M. Mihm, Judge.

____________

ARGUED FEBRUARY 16, 2007—DECIDED MAY 1, 2007

____________

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. On the afternoon of Friday,

September 16, 2005, with a Monday trial looming, Simon

Lundy pled guilty to one count of conspiring to possess and

distribute more than five kilograms of cocaine and more

than 50 grams of cocaine base, in violation of 21 U.S.C.

§§ 841 and 846. On January 3, 2006, Lundy moved to

terminate his attorney and to withdraw his guilty plea,

claiming that his attorney’s ineffective assistance rendered the plea involuntary. The district court conducted

an evidentiary hearing and concluded that Lundy had

voluntarily pled guilty. Accordingly, it denied Lundy’s

motion to withdraw the plea, and Lundy appeals. For the

following reasons, we affirm the district court’s ruling.
2 No. 06-2749

1 Iben was Lundy’s third attorney. Lundy’s first attorney, a

federal defender, withdrew because of a conflict of interest

stemming from his office’s prior representation of a cooperating

government witness. Lundy’s second attorney withdrew at

Lundy’s request.

I. BACKGROUND

On September 16, 2005, the Friday morning before he

was scheduled to go to trial, Simon Lundy met with his

attorney, Thomas Iben, to discuss the possibility of

pleading guilty.1

 Iben had called for the meeting, and he

met Lundy in a cell block of the courthouse to discuss the

pros and cons of entering a guilty plea. Iben enlisted Rob

Alvarado, Lundy’s former federal defender, to help him

explain that the government’s case against Lundy had

strengthened since Alvarado ceased representing him. Iben

recruited Alvarado for this job because Lundy trusted

Alvarado and because Alvarado had previously advised

Lundy to go to trial. During a discussion that lasted about

an hour, both Iben and Alvarado recommended that Lundy

plead guilty. At some point in the discussion, Iben and

Lundy began arguing and Iben threw papers at Lundy

through the cell door. Iben apologized for his outburst, and

he and Lundy resumed their discussion. When Iben and

Alvarado left, Lundy still wanted to go to trial.

Around 4:00 that afternoon, Iben met with Lundy alone.

Iben advised him that if he entered a guilty plea, his

sentence would be based on the amount and type of the

drugs he possessed. Iben then told Lundy that the government had made a concession about the strength of its

drug amount evidence. Based on the concession, Lundy

decided to plead guilty. According to Iben, he and Lundy

reviewed the plea agreement very quickly because it was

late on Friday, and the court wanted to know whether to

call off the jurors.
No. 06-2749 3

Immediately after Lundy agreed to plead guilty, the

district court conducted a Rule 11 hearing, where Lundy

indicated that he was satisfied by Iben’s advice and

representation, that he had read the plea agreement and

discussed it with Iben, and that he understood the terms

of the agreement. The district court reviewed salient

paragraphs of the plea agreement, and Lundy indicated

that he understood each one. Lundy also agreed that no

one had made any promises or assurances to him other

than those contained in the plea agreement and that no

one had forced him to plead guilty.

The district court asked what had changed Lundy’s mind

about pleading guilty, given that he previously had

insisted on going to trial. Iben responded that “there were

some tacit concessions on [the Government’s] part as far as

how good their evidence was and of course sometimes

the evidence—you see less at the sentencing than you do

at a full trial.” The court then reviewed a range of possible

sentences based on different relevant conduct scenarios,

emphasizing that the court would resolve the dispute

about drug type and quantity.

At that point, the government stated that its best

evidence as to the amount and type of drugs consisted of

admissions Lundy made to a former cell mate in Knox

County jail. The Assistant U.S. Attorney remarked that

she “told Mr. Iben [she] would be willing to say this to the

Court.” The government made no representation about

the evidence it intended to present at sentencing.

On December 12, 2005, the Probation Office issued

Lundy’s initial presentence investigation report, which

documented drug amounts in excess of eight kilograms

of powder cocaine and 500 grams of cocaine base. On

January 3, 2006, Lundy filed a motion to terminate his

attorney and withdraw his guilty plea. Lundy argued that,

under the totality of the circumstances, his plea was not
4 No. 06-2749

knowing and voluntary. He claimed that he did not have

an adequate opportunity to review the plea agreement

with his attorney and that he thought his sentence

would be based solely on the amount of powder cocaine

that he admitted during the change of plea hearing.

Lundy also argued that Iben’s methods of persuading

him to plead guilty were objectively unreasonable, thus

constituting ineffective assistance of counsel. Lundy

highlighted three facts that allegedly demonstrated Iben’s

deficiency: 1) Iben’s enlistment of Lundy’s former attorney,

who had a conflict of interest, to help convince Lundy to

plead; 2) Iben’s throwing papers at Lundy; and 3) Iben’s

use of a worthless government concession as a selling

point.

On May 12, 2006, the district court conducted an evidentiary hearing on Lundy’s motion to withdraw. The court

heard testimony from Iben and Alvarado, but Lundy did

not testify. Iben described his discussion with Lundy about

the government’s concession as follows:

I also told him that I had had some discussions with

the Government[,] and they were willing to concede

in all likelihood that their best evidence as to weight

and type of substance came from a particular witness

who was allegedly a snitch of theirs from when he was

housed with Lundy at the Knox County jail[,] and

that’s what we talked about and that was one of the

bigger concerns because Mr. Lundy’s big concern was

that the main witness, Wakefield, was not telling the

truth about what all Lundy had done.

After the hearing, the district court found that Lundy

knew his sentence would not be based only on the amount

of powder cocaine he admitted at his plea hearing. The

district court noted that Lundy’s hearing included an

extensive discussion about the fact that the drug amount
No. 06-2749 5

2 Wakefield was a Peoria drug dealer who engaged in drug

transactions with Lundy. According to Lundy, he engaged in

only two transactions with Wakefield, involving 13.5 ounces of

cocaine. Lundy was concerned that Wakefield would testify

falsely to reduce his own 22-year sentence. Indeed, Wakefield

testified that he and Lundy engaged in transactions involving

far more than 13.5 ounces of cocaine.

and type remained in dispute, and Lundy agreed that the

district court would resolve the disputes at sentencing.

Additionally, the district court found that Iben performed reasonably and that Lundy had sufficient time to

review the plea agreement. The court did express concern

that Alvarado’s presence at the September 16 meeting

between Iben and Lundy had the appearance of impropriety, but found that it was not inappropriate under the

circumstances. Accordingly, the district court denied

Lundy’s motion to withdraw the guilty plea.

On June 15, 2006, the district court conducted Lundy’s

sentencing hearing. The government presented testimony

from Kenneth Zimmerman, Lundy’s former cell mate, and

Diondre Wakefield, another cooperating witness.2

 The

district court accepted the drug amounts that Wakefield

and Zimmerman described and determined that Lundy

was responsible for more than eight kilograms of cocaine

and 500 grams of cocaine base, giving Lundy a base offense

level of 34. An obstruction of justice enhancement increased the offense level to 36, and the court sentenced

Lundy to 188 months in prison, the low end of the recommended guidelines range.

II. DISCUSSION

Lundy argues that the district court erred in denying his

motion to withdraw the guilty plea. This Court has
6 No. 06-2749

recognized that a defendant’s right to withdraw a guilty

plea is not absolute. United States v. Underwood, 174 F.3d

850, 852 (7th Cir. 1999). A guilty plea, once accepted by

the court, may be withdrawn only for a “fair and just

reason,” and the burden of justifying relief rests with the

defendant. Fed. R. Crim. P. 11(d)(2)(B); Underwood, 174

F.3d at 852.

Ineffective assistance of counsel can render a plea

agreement involuntary, and is therefore a valid basis for

withdrawing a guilty plea. See Hill v. Lockhart, 474 U.S.

52, 57 (1985); United States v. Wallace, 276 F.3d 360, 366

(7th Cir. 2002). To demonstrate ineffective assistance in

this context, a defendant must show both that counsel’s

performance was objectively unreasonable and that, but for

counsel’s errors, the defendant would not have pled guilty.

United States v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005).

When determining whether a defendant entered a plea

involuntarily, courts consider the totality of the circumstances. See, e.g., United States v. Bradley, 381 F.3d 641,

645 (7th Cir. 2004); United States v. LeDonne, 21 F.3d

1418, 1423 (7th Cir. 1994).

We review a district court’s denial of a motion to withdraw a guilty plea based on ineffective assistance for an

abuse of discretion. United States v. Merriweather, 294

F.3d 930, 931 (7th Cir. 2002). The Court upholds factual

findings concerning whether a defendant demonstrated a

“fair and just” reason to withdraw his guilty plea unless

those findings are clearly erroneous. United States v.

Logan, 244 F.3d 553, 557 (7th Cir. 2001). “[A] district

court is generally justified in discrediting the proffered

reasons for the motion to withdraw and holding the

defendant to [his] admissions” during the plea colloquy.

United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)

(citation and quotation omitted).

Lundy identifies several factors that he claims add up to

ineffective assistance of counsel. First, Lundy alleges that
No. 06-2749 7

the general atmosphere in which he agreed to plead

guilty—an eleventh hour meeting with his attorney as the

clock ticked down to trial—was conducive to coercion.

Lundy emphasizes that he had continuously expressed his

desire to go to trial, and it was not until the last minute

that his attorney began pushing him to make a deal.

Nevertheless, the district court properly found that the

timing of Lundy’s plea did not provide a reason for withdrawing it. Lundy acknowledged that he understood the

terms of the plea agreement, and the district court reviewed the salient terms during the Rule 11 hearing. That

the agreement was made close to trial is irrelevant so

long as Lundy understood it and voluntarily entered into

it.

Second, Lundy argues that it was improper for Iben to

call in Alvarado to discuss the possibility of pleading with

Lundy, given that Alvarado had a conflict of interest.

While the district court recognized that Iben’s enlistment

of Alvarado could have appeared improper, it accepted

Iben’s reasons for doing so, i.e., that Lundy trusted

Alvarado and that Alvarado had previously advised him

to go to trial. We also note that Alvarado’s conflict was

not personal. Rather, the Federal Defender’s Office had

previously represented a cooperating government witness in an unrelated matter. Moreover, the district court

found that Alvarado’s presence had no effect on Lundy’s

decision to plead guilty. That finding was not clearly

erroneous, especially since Lundy still planned to go to

trial at the time Alvarado left.

Third, Lundy claims that his morning argument with

Iben, in which Iben threw papers at him, demonstrated

Iben’s ineffectiveness. While we do not condone Iben’s

behavior, the district court did not abuse its discretion in

finding that Iben’s overall performance was reasonable. In

any event, Alvarado testified that Iben and Lundy “settled

back down and had a discussion about the facts and the

law of the case” following the argument, and Iben apolo-
8 No. 06-2749

gized to Lundy for his outburst. Furthermore, there is no

evidence that the argument coerced Lundy into pleading

guilty because he still planned to go to trial at the end of

the morning meeting.

Finally, Lundy contends that Iben trumpeted the government’s “worthless concession” as something that would

benefit Lundy at sentencing in order to induce him to

plead guilty. The government’s statement at the plea

hearing shows that it made Lundy no false promises to

induce a guilty plea. What remains unclear, however, is

what Iben represented to Lundy. He told the district court

that the government’s concession is what finally convinced Lundy to enter into a plea agreement, but he did

not explain how or why it changed Lundy’s mind. Iben also

stated that the concession went to the strength of the

government’s evidence, and that he hoped some of the

evidence regarding drug amounts might not be used if

Lundy forewent a trial. However, Iben did not indicate

whether he told Lundy that the government would not

present Wakefield’s testimony.

Because Lundy did not testify at the hearing, we cannot

determine whether Iben inflated the value of the government’s concession. Nor do we know what Lundy thought

the concession meant. If Iben merely hoped or predicted

incorrectly that the government would not put on its

weaker evidence, his performance was not deficient. See,

e.g., United States v. Martinez, 169 F.3d 1049, 1053 (7th

Cir. 1999) (recognizing that a mere inaccurate prediction

of a sentence does not constitute deficient performance).

On the other hand, if defense counsel made inaccurate

representations or grossly mischaracterized the potential

sentence, then his performance might have been deficient.

Id. Significantly, Lundy acknowledged at his change of

plea hearing that no one had made him any promises other

than those contained in the agreement. Ultimately,

Lundy’s failure to testify doomed his claim, because the
No. 06-2749 9

burden of justifying relief was his at all times. Underwood,

174 F.3d at 852. In short, the district court did not

abuse its discretion in holding that Lundy failed to provide a fair and just reason for withdrawing his plea.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

ruling.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-1-07