In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-1669

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARRELL JONES,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01 CR 30154—G. Patrick Murphy, Chief Judge.

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ARGUED MAY 27, 2004—DECIDED AUGUST 20, 2004

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Before FLAUM, Chief Judge, and MANION and KANNE,

Circuit Judges.

KANNE, Circuit Judge. On October 19, 2001, a federal

grand jury returned a four-count indictment charging

Darrell Jones with three counts of distributing over five

grams of crack cocaine and one count of possessing with the

intent to distribute more than five grams of crack cocaine

and cocaine powder. See 21 U.S.C. § 841. On December 12,

Jones pled guilty to all four counts of the indictment,

pursuant to a written plea agreement in which he waived

his right to appeal his sentence. The next day, Jones attempted to withdraw his guilty plea. The district court, on
2 No. 02-1669

1 The amounts of crack cocaine involved in the three transactions

were, respectively, 13.0 grams, 13.1 grams, and 12.7 grams.

2 On July 13, 2001, 24.8 grams of crack cocaine and 26.9 grams

of powder cocaine were seized.

December 17, denied Jones’s motion without holding an evidentiary hearing. The district court proceeded to sentence

Jones to 360 months in prison under the United States

Sentencing Guidelines. We affirm the district court’s decision to deny Jones’s motion to withdraw his guilty plea

without an evidentiary hearing, and we decline to review

Jones’s sentence as his plea bargain included a valid waiver

of his right to appeal.

I. History

After the authorities completed a series of audiotaped

drug transactions with Jones through cooperating individuals, he was arrested on July 13, 2001.1

 Jones waived his

Miranda rights and provided a written statement outlining his lengthy involvement in cocaine sales. Jones even

turned over to police quantities of crack cocaine, powder cocaine, and two firearms he kept in his East St. Louis, Illinois,

residence.2

 Jones initially pled not guilty, but given the

strong evidence against him, he entered into a plea agreement with the government.

Jones agreed to plead guilty to all four counts in the indictment. The plea agreement set out the government’s

belief that Jones’s sentencing range would be 262-327

months and Jones’s belief that his sentencing range would

be 210-262 months. Jones acknowledged that neither of

these numbers were binding on the court should it accept

the guilty plea and plea agreement. Jones agreed “that the

total amount of cocaine base, commonly known as ‘crack’

cocaine attributable to the defendant, to be used in cal-
No. 02-1669 3

3 The concessions included an agreement not to file drug-trafficking, weapons, or other charges arising from the events leading up

to Jones’s arrest.

culating his relevant offense conduct, would be more than

one point five kilograms[.]” (Plea Agreement at 5.) 

Jones also waived his right to appeal in the plea agreement:

The defendant is aware that Title 18, United States

Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the

Defendant knowingly waives the right to appeal any

sentence within the maximum provided in the statute(s)

of conviction (or the manner in which that sentence was

determined) on the grounds set forth in Title 18, United

States Code, Section 3742 or on any ground whatever,

in exchange for the concessions made by the United

States in this plea agreement.3

 The Defendant also

waives his right to challenge his sentence or the manner in which it was determined in any collateral attack[.]

(Plea Agreement at 7.) After Jones signed the plea agreement, he changed his plea to guilty on December 12, 2001.

As Jones concedes in his appellate brief, “the district

court properly admonished [him] pursuant to Rule 11 and

found that the plea was knowing and voluntary.” (Def. Br.

at 5.) The district judge, in a twenty-seven minute hearing,

assured himself that Jones was competent to plead guilty

and that he willingly signed the plea agreement, without

pressure or promises from anyone. The district judge carefully questioned Jones to make sure he understood the ramifications of his guilty plea, which the judge accepted after

the Rule 11 colloquy. The judge also discussed the plea

agreement, which he postponed acceptance of until after the
4 No. 02-1669

pre-sentence report (“PSR”) was available. Judge Murphy

thoroughly explained the right of trial by jury, including the

concomitant right to be presumed innocent until proven

guilty beyond a reasonable doubt, the right to produce

witnesses in one’s defense, the right to cross-examine

adverse witnesses, and the right to either testify or not to

testify in one’s own defense. 

The district judge went on to ensure that Jones understood that the statutory range of imprisonment for each

count he had pled guilty to was ten years to life, and that

once the judge accepted the guilty plea, the sentencing guidelines’ estimates in the plea agreement would not be binding

on the court. The district judge also reiterated to Jones that

he was abandoning his right to appeal: “And you understand that the government is . . . making certain concessions to you and for your part, you’re giving up your right

to appeal your sentence. Do you understand that?” Jones

replied, “Yes, sir.” (Plea Tr. at 15.) Throughout the change of

plea hearing, the judge allowed Jones to consult with his

attorney.

Despite this thorough Rule 11 colloquy, Jones insisted the

next day that he wanted to withdraw his guilty plea and

sever his relationship with his attorney. Jones claimed that

he did not understand the plea bargain and that he thought

he was pleading guilty in exchange for a sentence of ten

years. The district judge denied his requests on December

17, 2001, refusing to reexamine the issues through an evidentiary hearing: 

While a transcript of the December 12 hearing has not

been prepared, the Court keenly recalls the proceedings

and is satisfied that the requirements of Federal Rule

of Criminal Procedure 11 were met. Defendant took an

oath to tell the truth, admitted that he understood the

charges against him and the possible penalties associated with a plea of guilty to those charges, and told this
No. 02-1669 5

Court that it was his desire to plead guilty. As stated by

Judge Easterbrook, “[a] defendant’s protestation that

statements freely made under oath when entering the

plea were a pack of lies is not a ‘fair and just reason’ to

start anew.” United States v. Stewart, 198 F.3d 984, 987

(7th Cir. 1999).

(Mem. and Order at 2.)

After reviewing the PSR and considering Jones’s objections to that document, the district judge sentenced Jones

on March 11, 2002. The judge agreed with the PSR that a

sentencing range of 360 months to life was appropriate and

sentenced Jones to 360 months imprisonment on all four

counts, to run concurrently. Jones also received eight years

supervised release, was fined $4000, and was ordered to pay

a special assessment of $400. 

Jones filed a timely Notice of Appeal on the same day he

was sentenced. He asserts that the district court should

have allowed him to withdraw his guilty plea, or, alternately,

should have held an evidentiary hearing to see if he had

valid reasons to withdraw his plea. Jones also requests this

court to review his sentence, in spite of his clear waiver of

appeal.

II. Analysis

A district court’s decision to deny a motion to withdraw a

guilty plea is reviewed for abuse of discretion. United States

v. Shaker, 279 F.3d 494, 497 (7th Cir. 2002); United States

v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998). Under the

former Federal Rule of Criminal Procedure 32(e) (2001), “[i]f

a motion to withdraw a plea of guilty . . . is made before

sentence is imposed, the court may permit the plea to be

withdrawn if the defendant shows any fair and just
6 No. 02-1669

4 In 2002, the Federal Rules of Criminal Procedure were amended,

with Rule 11(d) replacing Rule 32(e). Rule 11(d) now specifically

provides that a defendant may withdraw his guilty plea for “any

reason or no reason” before the district court accepts the guilty

plea. Fed. R. Crim. P. 11(d)(1). After the district court accepts the

guilty plea, however, the defendant must show a “fair and just

reason” for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B).

reason.”4 If the district court had not yet accepted Jones’s

guilty plea, he could have freely withdrawn his plea without

explanation. See Shaker, 279 F.3d at 495-97. But because

the district court had accepted Jones’s guilty plea, Jones

needed to provide a fair and just reason under Rule 32(e) to

withdraw his plea (even though the district court had not

yet accepted the plea agreement). United States v. Hyde,

520 U.S. 670, 671-74 (1997). 

We review the district court’s refusal to allow an evidentiary hearing to explore whether Jones should be allowed to

withdraw his guilty plea for an abuse of discretion. See

United States v. Winston, 34 F.3d 574, 578-79 (7th Cir.

1994). “A hearing on a motion to withdraw a plea is to be

routinely granted if the movant offers any substantial evidence that impugns the validity of the plea.” United States v.

Redig, 27 F.3d 277, 280 (7th Cir. 1994) (quotations omitted).

However, “if no such evidence is offered, or if the allegations

advanced in support of the motion are mere conclusions or are

inherently unreliable, the motion may be denied without a

hearing.” Id. (quotation omitted). Furthermore, the defendant “must overcome the presumption of verity that

attaches to [statements made at the Rule 11 colloquy].” Id.

(quotation omitted). 

Jones concedes that the Rule 11 colloquy was thorough

and fair. He asserts, however, that he didn’t really understand the plea bargain and the guilty plea. Furthermore,

according to Jones, he was duped by his attorney into

believing that he was making a deal for ten years in prison.
No. 02-1669 7

5 Although the parties did not discuss the appeal waiver in their

briefs, it had already been raised in the government’s March 27,

2002 motion to dismiss Jones’s appeal filed in this court. In an

Order issued on April 17, 2002, we denied the government’s motion.

But by doing so, we were only agreeing with Jones that the issue

of waiver “should be taken with the case . . . [and] ruled on at the

conclusion of these proceedings.” (Def. Response, April 1, 2002, at

1.)

These assertions alone do not entitle Jones to withdraw his

plea or even entitle him to an evidentiary hearing.

At his Rule 11 hearing, Jones explicitly affirmed that he

understood how the judge would assess the information

provided in the PSR to calculate a sentence. He confirmed

that he had discussed this matter with his attorney. He also

unequivocally denied that anyone—not his own lawyer, not

the government attorneys—had attempted to force him to

plead guilty. Jones’s motion to withdraw his guilty plea

directly contradicts his statements at the change of plea

hearing. Other than his own self-serving assertions, his

motion lacks any proof that he did not understand his guilty

plea or that he was pressured into a guilty plea through

false promises. See Winston, 34 F.3d at 578-79 (explaining

that affidavits containing only conclusions do not provide a

basis for an evidentiary hearing). The district judge was

well within his discretion in crediting Jones’s Rule 11

testimony as conclusive. See United States v. Stewart, 198

F.3d 984, 987 (7th Cir. 1999) (“[A] defendant has no chance

of success on appeal when the judge elects to treat freely

given sworn statements as conclusive.”).

Furthermore, Jones’s waiver precludes this court from

considering his challenge to his sentence.5

 A defendant may

waive his appeal rights as part of a plea agreement,

provided the waiver is clear and unambiguous. United

States v. Mason, 343 F.3d 893, 893-94 (7th Cir. 2003); United

States v. Nave, 302 F.3d 719, 720 (7th Cir. 2002); United
8 No. 02-1669

States v. Woolley, 123 F.3d 627, 631-32 (7th Cir. 1997).

“[T]he right to appeal is a statutory right, and like other

rights—even constitutional rights—which a defendant may

waive, it can be waived in a plea agreement.” United States

v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997). Voluntariness of a guilty plea is ensured by a court’s compliance

with Federal Rule of Criminal Procedure 11. United States

v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002).

Jones explicitly waived his right to appeal his sentence.

And, as established above, he knowingly and voluntarily

signed the plea agreement and pled guilty. The fact that he

is unhappy with his ultimate sentence does not undo his

acquiescence.

III. Conclusion

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

refusal to allow Jones to withdraw his guilty plea. We

DISMISS his sentence appeal pursuant to the waiver in the

plea agreement.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-20-04