United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2009 Decided December 1, 2009

No. 07-3127

UNITED STATES OF AMERICA,

APPELLEE

v.

JONTE ROBINSON, ALSO KNOWN AS TAY,

APPELLANT

Consolidated with 08-3010, 08-3036

Appeals from the United States District Court

for the District of Columbia

(No. 04cr00128-13)

Kristen Grim Hughes, appointed by the court, argued the

cause for the appellants. Edward C. Sussman and Mary E.

Davis, appointed by the court, were on brief.

Amanda J. Winchester, Assistant United States Attorney,

argued the cause for the appellee. Jeffrey A. Taylor, United

States Attorney at the time the brief was filed, and Roy W.

McLeese III, Elizabeth Trosman, and John Philip Dominguez,

Assistant United States Attorneys, were on brief.
2

1

This court consolidated the appellants’ appeals sua sponte.

Order, United States v. Robinson, No. 07-3127 (D.C. Cir. May 20,

2008).

Before: HENDERSON, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Jonte D.

Robinson, Tommie Dorsey and Kenneth Dodd pleaded guilty to

drug and racketeering conspiracies pursuant to “wired” plea

agreements with the Government. Before sentencing, they

moved to withdraw their guilty pleas. The district court denied

their motions and sentenced them in accordance with their plea

agreements. On appeal,1

 they contend that the district court

failed to accept, and therefore left them the unfettered power to

withdraw, their guilty pleas. They contend in the alternative that,

if the district court accepted their pleas, it abused its discretion

by denying their motions to withdraw them and by not

conducting an evidentiary hearing thereon. We conclude that the

district court accepted the appellants’ guilty pleas and did not

abuse its discretion in denying their motions to withdraw and

their hearing request. Accordingly, we affirm.

I.

On October 19, 2005, a grand jury issued a superseding

indictment charging nineteen defendants with, inter alia, drug

and racketeering conspiracies, drug offenses and homicides.

Superseding Indictment, United States v. Franklin, Cr. No. 04-

128 (D.D.C. Oct. 19, 2005) (Indict.). The defendants were

separated into three groups for trial. The third group included

the appellants and a co-defendant named Larry Gooch, Jr. If

convicted, the appellants faced life sentences and Gooch faced

death. 
3

2

Gooch proceeded to trial.Judgment, United States v. Gooch, Cr.

No. 04-128-23 (D.D.C. Oct. 18, 2007). A jury found him guilty on

twenty-six counts and the court sentenced him to life in prison. Id.

3

Federal Rule of Criminal Procedure 11(c)(1)(C) provides in

relevant part:

An attorney for the Government and the defendant’s

attorney . . . may discuss and reach a plea agreement.

The court must not participate in these discussions. If

the defendant pleads guilty or nolo contendere to

either a charged offense or a lesser or related offense,

the plea agreement may specify that an attorney for

the Government will: . . . agree that a specific

sentence or sentencing range is the appropriate

disposition of the case, or that a particular provision

of the Sentencing Guidelines, or policy statement, or

sentencing factor does or does not apply (such a

recommendation or request binds the court once the

court accepts the plea agreement).

On January 17, 2007, after jury selection had begun, the

appellants entered into plea agreements2 with the Government

under Federal Rule of Criminal Procedure (Rule) 11(c)(1)(C).3

The agreements provided that each appellant would plead guilty

to a drug conspiracy, in violation of 21 U.S.C. § 846, and a

racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(d)

and 1963. They further provided that the racketeering pleas

would require the appellants to admit to overt acts involving,

inter alia, drugs, firearms and—for Robinson and

Dorsey—murder. In return, the Government would agree to

twenty-five-year prison sentences followed by five-year

supervised-release terms. The plea agreements were “wired,”

which meant each was contingent on the others.
4

4

Before accepting a guilty plea, the court must inform the

defendant of his trial rights, the nature of the charges against him, the

possible penalties and the impact of the United States Sentencing

Guidelines (Guidelines). Fed. R. Crim. P. 11(b). It must also

determine that the plea is voluntary and based on fact. Id.

Later that day, the district judge held a Rule 11 plea

colloquy4 with each appellant individually while the other two

remained in the courtroom. Transcript of Plea, United States v.

Dodd, Cr. No. 04-128-06, -13, -21 (D.D.C. Jan. 17, 2007) (Plea

Tr.). Dodd went first, then Robinson, then Dorsey. Id. Each

appellant pleaded guilty to the two conspiracy counts. Id.

Beginning in May 2007, the appellants filed several motions

to withdraw their guilty pleas, all of which the district court

denied. United States v. Robinson, 498 F. Supp. 2d 328 (D.D.C.

2007); Transcript of Sentence, United States v. Dodd, Cr. No.

04-128-06, -13, -21, at 24 (D.D.C. May 5, 2008) (Sent. Tr.). On

May 5, 2008, the court sentenced each appellant to twenty-five

years in prison followed by five years of supervised release,

pursuant to their respective plea agreements. This appeal

followed.

II.

The appellants want to withdraw their guilty pleas. Under

Rule 11, a defendant may withdraw his guilty plea under any of

three circumstances. First, “before the court accepts the plea,”

the defendant may withdraw it “for any reason or no reason.”

Fed. R. Crim. P. 11(d)(1). Second, if the court has accepted the

plea, the defendant may withdraw it if he “show[s] a fair and

just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). Third, if the court rejects a plea agreement made

under Rule 11(c)(1)(A) or (C), it must permit the defendant to

withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(A). 
5

A. Acceptance of Guilty Pleas

The appellants first argue that the district court failed to

accept their guilty pleas and they are thus entitled to withdraw

them “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1).

The district court rejected this argument, concluding that it had

accepted each appellant’s plea. Robinson, 498 F. Supp. 2d at

332-33. We review the district court’s decision de novo. United

States v. Jones, 472 F.3d 905, 908-09 (D.C. Cir. 2007).

Guilty pleas are distinct from plea agreements. United

States v. Hyde, 520 U.S. 670, 677-78 (1997) (rules “explicitly

envision” guilty plea before performance of plea agreement);

United States v. Jones, 472 F.3d at 908 (“[G]uilty pleas exist

independently from plea agreements on which they rest . . . .”)

(citing Hyde, 520 U.S. at 677). Accordingly, a court may accept

a defendant’s guilty plea and temporarily refrain from accepting

or rejecting a corresponding plea agreement. See Fed. R. Crim.

P. 11(c)(3)(A) (“To the extent the plea agreement is of the type

specified in Rule 11(c)(1)(A) or (C), the court may . . . defer a

decision until the court has reviewed the presentence report.”);

Hyde, 520 U.S. at 678; Jones, 472 F.3d at 908. In this case, the

district court refrained from accepting or rejecting the

appellants’ plea agreements at the Rule 11 hearing, pending

presentence reports. See Plea Tr. at 8-9. The appellants contend

that, in so doing, the court failed to clearly distinguish between

their plea agreements and their guilty pleas, which left them

with the belief that it had accepted neither.

In Jones we held that, although the district court had used

language “loosely” at the defendant’s plea hearing, the transcript

viewed as a whole manifested that the court had accepted the

defendant’s guilty plea and left him “no reasonable basis” for

thinking otherwise. 472 F.3d at 909. The same is true here.

While the district court at times used the terms “plea” and “plea

agreement” interchangeably, e.g., Plea Tr. at 18, 24-25, 29, 35,

42, the transcript of the plea hearing, read in its entirety,
6

establishes that the court accepted the appellants’ guilty pleas.

The court asked each appellant how he pleaded as to the two

separate counts. Plea Tr. at 25, 37-38, 46. After each appellant

twice responded, “Guilty,” the court told him that it “accept[ed]”

his plea. Id. at 25, 38, 46. Despite the court’s occasional

imprecision, therefore, it plainly accepted the appellants’ guilty

pleas and left them “no reasonable basis” for thinking otherwise.

Jones, 472 F.3d at 909. 

The appellants also contend that the acceptances were

ineffective because the court referred to them as “conditional.”

Reply Br. 3. That argument failed in Jones and it fails here. As

was true in Jones, “acceptance was ‘conditional’ only in that

under Rule 11(d)(2)(A) the court had to give [the defendant] an

opportunity to withdraw the plea if it ultimately rejected the plea

agreement. . . . [S]uch conditions subsequent do not nullify

otherwise valid acceptances.” Jones, 472 F.3d at 908 (citing

Hyde, 520 U.S. at 679-80). So too, here, the court’s use of the

term “conditional” did not nullify its acceptance of the

appellants’ guilty pleas. Rather, it appropriately signified that,

if the court subsequently rejected their plea agreements, the

appellants would be permitted to withdraw their guilty pleas. See

id.; Fed. R. Crim. P. 11(d)(2)(A). Accordingly, we conclude that

the district court accepted the appellants’ pleas.

B. Denial of Motions to Withdraw Pleas

Granting, arguendo, that the district court accepted their

guilty pleas, the appellants next contend that it erred in denying

their motions to withdraw them. Pursuant to Rule 11(d)(2)(B),

a district court may grant a presentence motion to withdraw a

guilty plea if “the defendant can show a fair and just reason.”

We review a district court’s denial of such a motion for abuse of

discretion. United States v. Curry, 494 F.3d 1124, 1128 (D.C.

Cir. 2007). We focus on three factors: “(1) ‘whether the

defendant has asserted a viable claim of innocence’; (2)

‘whether the delay between the guilty plea and the motion to
7

withdraw has substantially prejudiced the government’s ability

to prosecute the case;’ and (3) ‘whether the guilty plea was

somehow tainted.’” United States v. Taylor, 139 F.3d 924, 929

(D.C. Cir. 1998) (quoting United States v. Ford, 993 F.2d 249,

251 (D.C. Cir. 1993)). The third factor is the “most important,”

Ford, 993 F.2d at 251, so we address it first. See United States

v. Cray, 47 F.3d 1203, 1208 (D.C. Cir. 1995). 

1. Taint

All three appellants argue that the district court

impermissibly intruded on the plea-bargaining process. Their

argument relies on Rule 11(c)(1), which provides, “An attorney

for the Government and the defendant’s attorney . . . may

discuss and reach a plea agreement. The court must not

participate in these discussions.” In support of their argument,

the appellants quote statements the court made at the plea

hearing regarding the bargain to which the parties had agreed.

Appellants’ Br. 18. Several related to the court’s task of

calculating the applicable Guidelines range in the context of a

Rule 11(c)(1)(C) plea agreement. Plea Tr. at 8-10. As the court

pointed out, however, its calculation would not alter the terms

of their respective agreements. Plea Tr. at 19. Other statements

put the parties on notice the court was considering rejecting the

plea agreements, as is its prerogative under Rule 11(c)(5). None

of these statements constitutes improper participation by the

court in plea agreement discussions. 

The appellants invoke United States v. Baker, which

articulates reasons for prohibiting judicial participation in the

plea bargaining process—specifically that it risks coercion,

compromises a judge’s impartiality and gives a misleading

impression as to the judge’s role. 489 F.3d 366, 370 (D.C. Cir.

2007). But the statements referenced above do not relate to

Baker’s concerns. They did not coerce the appellants into their

plea agreements; the parties had agreed to plead guilty before

the statements occurred. They were not partial to one party;
8

instead they conveyed skepticism regarding the agreement both

sides wanted. They did not convey a misleading impression as

to the court’s role; to the contrary, they spoke to a quintessential

judicial function. See United States v. Kraus, 137 F.3d 447, 454

(7th Cir. 1998) (district judge’s assessment of plea agreement in

light of facts and Guidelines constituted “exactly the kind of

‘active evaluation’ of the plea agreement that Rule 11 and the

cases interpreting it envision” (quoting United States v. Crowell,

60 F.3d 199, 201-02, 203-04 (5th Cir. 1995))). In sum, the

district court did not improperly participate in the plea

agreement process. 

The appellants also argue that their guilty pleas were tainted

based on the United States Attorney’s alleged coercion. They

contend that they were coerced into accepting wired plea

agreement offers with short shelf lives while they were all

confined in a holding cell. United States v. Holland is on point.

117 F.3d 589 (D.C. Cir. 1997). In that case, two brothers entered

into a wired plea agreement “on the eve of trial” on drug

conspiracy charges. Id. at 592. After pleading guilty, one brother

moved to withdraw his plea, claiming that the last-minute wired

plea offer involving his brother was coercive. Id. at 593. We

rejected that argument, holding that, although wired plea

agreements “‘could be coercive, especially when family

members are involved,’” the Rule 11 proceeding adequately

addressed any possible coercion in that case. Id. at 594 (quoting

United States v. Hernandez, 79 F.3d 1193, 1194 (D.C. Cir.

1996)). We further held that “[a] district court does not have to

‘undertake a special voluntariness inquiry when faced with a

wired plea.’” Id. (quoting United States v. Farley, 72 F.3d 158,

164 (D.C. Cir. 1995)). Just as the plea procedure in Holland

sufficed to dispel any coercion, so too did the procedure here.

All three defendants affirmed during their plea colloquies that

they were entering the pleas of their own free will. Plea Tr. at

23-24, 32-33, 46. The court was aware of the wired nature of the

plea agreements, see, e.g., id. at 29, 41, and repeatedly probed
9

5

Appellants’ Br. 17 (citing Jones, 472 F.3d 905; Holland, 117

F.3d 589; Cray, 47 F.3d 1203).

6

In contrast, Rule 11(c)(3)(B) provides, “To the extent the plea

agreement is of the type specified in Rule 11(c)(1)(B), the court must

advise the defendant that the defendant has no right to withdraw the

plea if the court does not follow the recommendation or request.”

each appellant’s acquiescence to their terms. See generally Plea

Tr. Nothing about their particular circumstances required the

district court to seek further assurances of voluntariness. In

short, the appellants’ wired plea agreements did not taint their

guilty pleas.

Next, the three appellants argue that their pleas were tainted

because the district court did not inform them that they would be

unable to withdraw their pleas unless it rejected their plea

agreements. None of the cases the appellants cite,5

 however, can

be fairly read to impose that obligation on the district court. Nor

have we discovered any authority to that effect.6

 The appellants’

pleas were not tainted by the court’s failure to comply with a

nonexistent obligation. Relatedly, the appellants argue that the

district court improperly intimated that they could withdraw

their guilty pleas any time they wished. It did no such thing. The

court merely noted that, should any of the appellants move to

withdraw his guilty plea, he would breach his wired plea

agreement. Plea Tr. at 21, 29, 41-42. This was an explicit term

in all three plea agreements. Plea Agreement, United States v.

Dodd, Cr. No. 04-128-06, at 5 (D.D.C. Jan. 17, 2007) (Dodd

Plea Agr.); Plea Agreement, United States v. Robinson, Cr. No.

04-128-13, at 5 (D.D.C. Jan. 17, 2007) (Robinson Plea Agr.);

Plea Agreement, United States v. Dorsey, Cr. No. 04-128-21, at

6 (D.D.C. Jan. 17, 2007) (Dorsey Plea Agr.).

In addition to the arguments all three appellants make,

appellant Dodd contends that his guilty plea is tainted by virtue
10

7

It is not clearthat the Guidelines amendments would have in fact

affected Dodd’s potential sentence. Dodd pleaded guilty to drug and

racketeering conspiracies. Sent. Tr. at 25. In return, the Government

agreed to dismiss all non-conspiracy charges, including nine cocaine

base counts. Dodd Plea Agr.; Indict. 36-47. But the Guidelines

amendments did not lower the sentencing range for the conspiracy

counts to which Dodd pleaded guilty, Order, United States v. Dodd,

Cr. No. 04-128-06 (D.D.C. Mar. 19, 2009), because the conspiracies

entailed distributing and possessing with intent to distribute thirty

kilograms or more of phencyclidine (PCP) separate from cocaine base.

Id.; Dodd Plea Agr. at 3. According to Dodd’s calculation, if he had

gone to trial and been acquitted on the conspiracy charges, the

Guidelines range he would have faced on the remaining

charges—including the nine non-conspiracy cocaine base

counts—would have been lower than the twenty-five-year sentence to

which he agreed. Appellants’ Br. 25. 

of amendments to the Guidelines. After Dodd pleaded guilty,

but before the district court sentenced him, the United States

Sentencing Commission (Commission) amended the Guidelines

by reducing the sentences for most cocaine base offenses. See

Sentencing Guidelines for the United States Courts, 72 Fed.

Reg. 28,558, 28,571-73 (May 21, 2007). According to Dodd,

“he should be allowed to withdraw his plea as, in retrospect, it

was not based on consideration of the Sentencing Guidelines

applicable to a disposition of his case.” Appellants’ Br. 30. 

We disagree. Even though Dodd may have considered the

Guidelines in deciding whether to accept the Government’s offer

or go to trial,7

 the district court was not obliged to set aside his

guilty plea after the Commission amended them. In Brady v.

United States, the Supreme Court held that “[a] defendant is not

entitled to withdraw his plea merely because he discovers long

after the plea has been accepted that his calculus

misapprehended . . . the likely penalties attached to alternative

courses of action.” 397 U.S. 742, 756-57 (1970). The same
11

8

In Dews, the Fourth Circuit held that 18 U.S.C. § 3582(c)(2)

(“[I]n the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission . . . the court may reduce the

term of imprisonment . . . .”) authorized the district court to account

for Guidelines amendments by reducing a sentence to which the

defendant agreed pursuant to Rule 11(c)(1)(C). 551 F.3d at 209. 

Other circuits have reached the opposite result, concluding that

a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is

not “based on” the Guidelines and thus does not come within the

scope of 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Main, 579

F.3d 200, 203 (2d Cir. 2009); United States v. Sanchez, 562 F.3d 275,

280 (3d Cir. 2009); United States v. Scurlark, 560 F.3d 839, 841 (8th

Cir. 2009). But see United States v. Cobb, No. 08-1213, 2009 WL

3418214, at *5 (10th Cir. Oct. 26, 2009) (following Dews).

principle applies here. A guilty plea does not automatically

become tainted if a change in the law alters a variable that the

defendant considered when he decided to plead guilty. See id.;

see also United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005)

(“[T]he possibility of a favorable change in the law occurring

after a plea is one of the normal risks that accompany a guilty

plea.”) (citing Brady, 397 U.S. at 757).

Dodd cites United States v. Dews, 551 F.3d 204 (4th Cir.

2008), vacated and reh’g en banc granted, No. 08-6458 (4th

Cir. Feb. 20, 2009), appeal dismissed as moot, No. 08-6458 (4th

Cir. May 4, 2009), and Melendez-Perez v. United States, 467 F.

Supp. 2d 169 (D.P.R. 2006), for support. As indicated, the

Fourth Circuit vacated Dews, granted rehearing en banc and

ultimately dismissed the appeal as moot. 551 F.3d 204.8

 In

Melendez-Perez, the district court reduced the defendant’s

sentence pursuant to 18 U.S.C. § 3582(c)(2) because the parties

and the court had been unaware at sentencing of an extant

Guidelines amendment that put the agreed-upon sentence

outside the recommended range. 467 F. Supp. 2d at 175-76. The
12

9

Dodd also moved for a sentencing reduction pursuant to 18

U.S.C. § 3582(c)(2). Order, United States v. Dodd, Cr. No. 04-128-06

(D.D.C. March 20, 2009). The district court denied his motion, id.,

and Dodd does not appeal that denial.

district court sought to remedy “an unjust situation essentially

provoked by its lack of relevant and essential information prior

to sentencing.” Id. at 175. It stated that “it would have assuredly

rejected the plea agreement at sentencing if it had been aware of

the effectiveness” of the Guidelines amendment. Id. at 176. In

this case, Dodd moved to withdraw his guilty plea, not reduce

his sentence.9

 Further, the district court here lacked no “relevant

and essential information” when it sentenced Dodd; it was aware

of the Guidelines amendments when it imposed the sentence to

which Dodd and the Government had agreed. See, e.g., Sent. Tr.

at 10 (“[S]ubsequent to his plea the guidelines have been

changed for crack . . . .”). In sum, contrary to Dodd’s assertions,

the fact that his sentencing occurred after the Guidelines

amendments does not mean that he was entitled to withdraw his

plea. See Brady, 397 U.S. at 757. Likewise, the fact that the

district court could have rejected the plea agreement and vacated

his guilty plea in light of the Guidelines amendments does not

mean that Dodd was similarly empowered. See Fed. R. Crim. P.

11(c)(5) (enabling district court to reject plea agreement and

thereafter permit defendant to withdraw guilty plea).

Finally, Dodd asserts that his argument is “based on the

well-established principle that courts are to use the Sentencing

Guidelines in effect on the date of sentencing.” Reply Br. 13

(citing USSG § 1B1.11(a)). This gains him no ground. To the

extent the district court “used” the Guidelines at all in

sentencing Dodd, there is no reason to believe it used any but

those “in effect at the date of sentencing.” See, e.g., Sent. Tr. at
13

10It is also worth noting that the transcript of Dodd’s plea

colloquy is at odds with his argument regarding the Guidelines

amendments’ effect. During the colloquy, the district court stated,

“The guideline analysis does not impact the real sentence because the

real sentence to which you’ve agreed is 25 years. . . . Do you

understand that?” Plea Tr. at 19. Dodd replied, “Yes, ma’am.” Id.

When the court repeated that the Guidelines calculation “doesn’t make

a difference because your agreement is for 25 years,” Dodd replied,

“Right.” Id.

23 (assessing Dodd’s sentencing prospects under the “guidelines

as they now exist”).10

Appellant Dorsey also raises a separate claim, contending

that the district court failed to advise him of certain trial rights

pursuant to Rule 11(b)(1). He makes this objection for the first

time on appeal and therefore we review for plain error only. See

In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002). “To

prevail under the plain error standard, an appellant bears the

burden of demonstrating that (1) the court clearly erred, (2) the

error implicated the appellant’s substantial rights, and (3) the

error has ‘seriously affected the fairness, integrity or public

reputation of the judicial proceedings.’” Baker, 489 F.3d at 371

(quoting In re Sealed Case, 283 F.3d at 352). 

Dorsey was the last of the appellants to plead guilty on

January 17, 2007. Plea Tr. By failing to separately advise

Dorsey of several trial rights, including the right to plead not

guilty, be tried by a jury, confront and cross-examine witnesses,

be protected from self-incrimination, testify and present

evidence and compel the attendance of witnesses, the district

court clearly erred. See Fed. R. Crim. P. 11(b)(1)(B), (C), (E);

Plea Tr. at 38. Dorsey has thus satisfied the first requirement for

plain error. See Baker, 489 F.3d at 371. In order to establish that

the court’s error affected his substantial rights, however, he

“must show a reasonable probability that, but for the error, he
14

would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004). Although Dorsey makes the

argument that, had the district court informed him of the rights

it omitted, he would not have pleaded guilty, Appellants’ Br. 24,

we are not persuaded. The court’s omissions caused him to

plead guilty, he asserts, because in their absence he “believed he

had no choice but to” enter a guilty plea. Id. For several reasons,

this assertion defies belief. First, Dorsey read and signed a plea

agreement informing him of his trial rights. Dorsey Plea Agr. at

5; see Dominguez Benitez, 542 U.S. at 85 (defendant’s

familiarity with plea agreement “tends to show that the Rule 11

error made no difference to the outcome”); cf. In re Sealed Case,

283 F.3d at 355 (Rule 11 omission not plain error in part

because of defendant’s familiarity with factual proffer covering

omitted content). Indeed, during the plea colloquy, the court

asked Dorsey if he had been “able to understand and read the

plea agreement,” to which he responded, “Yes, ma’am.” Plea Tr.

at 39. Second, Dorsey acknowledged during his plea hearing that

his lawyer had advised him as to his “choices” and his

“options.” Plea Tr. at 39-40; see In re Sealed Case, 283 F.3d at

355 (Rule 11 omission not plain error in part because defendant

“was represented and advised by counsel throughout”). Third,

Dorsey had just sat through complete Rule 11 plea colloquies

with Dodd and with Robinson. Plea Tr. at 1-38. While Dorsey

may not have been paying strict attention (an assertion he does

not directly make), his presence throughout two complete plea

colloquies makes it less likely that the judge’s omissions in his

case caused him to plead guilty. In short, Dorsey has not shown

“a reasonable probability” that the district court’s error affected

his substantial rights. Dominguez Benitez, 542 U.S. at 83. We

need not address, therefore, whether the error “‘seriously

affected the fairness, integrity or public reputation of the judicial

proceedings.’” Baker, 489 F.3d at 371 (quoting In re Sealed

Case, 283 F.3d at 352). The district court’s omissions during
15

Dorsey’s Rule 11 colloquy do not constitute plain error

requiring withdrawal of his guilty plea.

In sum, the district court did not abuse its discretion in

rejecting the appellants’ arguments that their guilty pleas were

tainted. The most important factor in our inquiry therefore

weighs in the Government’s favor. See Ford, 993 F.2d at 251.

If this factor favors the Government, “we will be extremely

reluctant to reverse the district court” and an appellant will have

to “shoulder an extremely heavy burden if he is ultimately to

prevail.” Cray, 47 F.3d at 1208. We conclude that the appellants

have not met that burden.

2. Viable Defense

We next consider whether the appellants have asserted

“viable claims of innocence,” which we dub “legally cognizable

defenses.” Curry, 494 F.3d at 1129. To satisfy this standard, an

appellant “‘must do more than make a general denial in order to

put the Government to its proof; he must affirmatively advance

an objectively reasonable argument that he is innocent, for he

has waived his right simply to try his luck before a jury.’” Id.

(quoting Cray, 47 F.3d at 1209).

All three appellants make broad denials in connection with

their motions to withdraw their guilty pleas. Robinson “insists

he is innocent of all . . . charges. He maintains that despite any

statements to the contrary made at the plea proceeding, he

neither participated in [homicides to further the racketeering

conspiracy nor] had any intent to join with any group or other

individuals in an organized or coordinated sale of drugs.”

Supplemental Submission in Support of Motion to Withdraw

Guilty Plea at 2, United States v. Robinson, Cr. No. 04-128-13

(D.D.C. July 12, 2007). For his part, Dodd 

maintains he is innocent of the charges to which

he pled guilty . . . . [He] avers he was never a

member of the so-called John Franklin
16

conspiracy and only knew Franklin from around

the neighbor hood [sic]. [He] further states that

he never sold PCP, pills, or crack for John

Franklin; he never bought PCP, pills, or crack

from John Franklin; he never worked for John

Franklin; and he never took orders from John

Franklin. Mr. Dodd says John Franklin never

supplied him with any drugs.

Supplemental Submission in Support of Defendant’s Motion to

Withdraw His Guilty Plea at 13, United States v. Dodd, Cr. No.

04-128-6 (D.D.C. July 18, 2007) (internal citation and

quotations omitted). Dorsey adopts Robinson’s and Dodd’s

denials. Motion to Adopt and Conform the Motion to Withdraw

Guilty Plea Filed by Jonte Robinson, United States v. Dorsey,

04-128-21 (D.D.C. July 18, 2007); Motion to Adopt and

Conform the Motion to Withdraw Guilty Plea Filed by Kenneth

Dodd, United States v. Dorsey, 04-128-21 (D.D.C. July 19,

2007). The district court rejected these claims, concluding that

the appellants “do not offer anything that would support their

bald statements of innocence.” Robinson, 498 F. Supp. 2d at

336-37. 

The appellants liken their case to McCoy, in which we held

that the defendant had “adequately presented cognizable

defenses to the charges against him.” 215 F.3d at 106-07. But

McCoy in fact illustrates the inadequacy of their innocence

claims. There, the charges involved two discrete drug deals and

McCoy specifically challenged the Government’s proof as to

each incident. Id. at 107. Here, the Government charged the

appellants with two vast conspiracies and numerous overt acts.

As noted, the appellants responded with summary assertions of

innocence only. Their attempted defense therefore has none of

the force of that mounted in McCoy. This factor, too, then, cuts

against the appellants.
17

3. Delay

The final factor we consider is “whether the delay between

the guilty plea and the motion to withdraw has substantially

prejudiced the Government’s ability to prosecute the case.”

Ford, 993 F.2d at 251 (internal quotation omitted). In Brady, we

explained that “[t]he most common form of prejudice is the

difficulty the Government would encounter in reassembling farflung witnesses in a complex case, but prejudice also occurs

where a defendant’s guilty plea removed him from an ongoing

trial of co-defendants, who were then found guilty.” 514 F.2d at

222. Both types of prejudice apply here. Before the appellants’

attempts to withdraw their pleas, the Government had conducted

two complex trials of their co-defendants. Robinson, 498 F.

Supp. 2d at 337 n.7. The trials involved approximately one

hundred witnesses and lasted about five months each. Id.

Moreover, as the district court noted, 

The United States was ready, willing, and able to

begin trial for these Defendants when they

decided to plead guilty. That trial proceeded

against Mr. Gooch alone . . . . To now allow

these Defendants to withdraw their pleas and

require the prosecutors to try the same case a

third time . . . would be extremely prejudicial to

the interests of the United States and the people

of Washington, D.C.

Id. at 337. While the appellants correctly note that the delay

factor is not dispositive, Cray, 47 F.3d at 1208, it nevertheless

favors the Government here. Given that the other two factors

also favor the Government, we conclude that the district court

did not abuse its discretion in denying the appellants’ motions

to withdraw their guilty pleas.
18

C. No Evidentiary Hearing

The appellants also contend that the district court abused its

discretion in denying their request for an evidentiary hearing.

This argument has no merit. “A district court need hold an

evidentiary hearing on a plea withdrawal only where the

defendant offers ‘substantial evidence that impugns the validity

of the plea.’” West, 392 F.3d at 457 n.4 (quoting United States

v. Redig, 27 F.3d 277, 280 (7th Cir. 1994)). Our analysis above

amply illustratesthat none of the appellants has met this burden.

Therefore, the district court did not abuse its discretion in

denying them an evidentiary hearing.

As the Supreme Court noted in Hyde, it is no trifling matter

to allow a defendant to withdraw a guilty plea “[a]fter [he] has

sworn in open court that he actually committed the crimes, after

he has stated that he is pleading guilty because he is guilty, after

the court has found a factual basis for the plea, and after the

court has explicitly announced that it acceptsthe plea.” 520 U.S.

at 676. All of this occurred at the appellants’ plea hearings and

the district court correctly denied their attempts to undo the

same.

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.