### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3427

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

A DRIAN C OLLINS

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 13

‐ cr

‐ 13

‐ bbc

— Barbara B. Crabb

, Judge

.

____________________

A RGUED A PRIL 23, 2015

— D ECIDED A UGUST 11, 2015

____________________

Before B AUER and S YKES

, Circuit Judges

, and R EAGAN

, Chief District Court Judge

. *

R EAGAN

, Chief District Judge

. In 2014, Adrian Collins pled

guilty to one count of cocaine distribution and was sen

‐

tenced to 96 months’ imprisonment. In this direct appeal

* Of the Southern District of Illinois, sitting by designation.2 No. 14

‐ 3427

from his conviction and sentence, Collins raises five 1 issues:

three stemming from attempts to withdraw his plea, one

challenging the district court’s decision to withhold an ac

‐

ceptance of responsibility reduction, and one hinting that his

sentence was unreasonable.

We affirm. The district judge made no clear error in con

‐ cluding withdrawal of Collins’ plea was unwarranted, or in

finding Collins did not qualify for an acceptance of respon

‐ sibility adjustment. Collins waived any attack on the reason

‐

ableness of his sentence.

I. Background

In early 2009, Adrian Collins was on federal supervised

release when he and a co

‐ defendant attempted to buy co

‐

caine and marijuana from an undercover officer. Authorities

arrested both men, and Collins gave a statement to officers.

Collins told them about his recent drug trafficking history,

which included “wholesale” (up to a kilogram of cocaine, up

to 30 pounds of marijuana) purchases in Illinois and “retail”

distribution in Wisconsin. Collins’ supervised release was

revoked, and he served a 27

‐ month term on the revocation.

Based on the same 2009 offense, a grand jury indicted him in

January 2013.

Collins was arraigned in March 2013 and entered a not

guilty plea to the two

‐ count indictment. On July 1, 2013, he

signed a plea agreement, agreeing to plead guilty to Count

One (cocaine possession with intent to deliver). In exchange,

the Government agreed to dismiss Count Two (marijuana

1 During oral argument, counsel clarified that Collins cedes a sixth

issue (concerning time served on his supervised release revocation)

enumerated in his brief.No. 14

‐ 3427 3

possession with intent to deliver) and to recommend the

maximum available reduction for acceptance of responsibil

‐ ity—unless Collins engaged in conduct inconsistent with his

acceptance of responsibility.

Collins said he had health problems that prevented court

appearances, so his change of plea hearing was not held un

‐

til May 2014. At that time he appeared in a wheelchair and

was accompanied by a woman he claimed was his nurse. In

reality, it was his fiancée, using a fake name; she was neither

a nurse nor nurse’s aide.

The plea colloquy was thorough. Under oath, Collins

acknowledged he could understand the district court: that

he was not “ill,

... on medication,

... very tired, or

... under

the influence of any drugs or alcohol.” Defense counsel

acknowledged he knew of no reason the judge should not

question Collins. Collins agreed with the Government’s rep

‐

resentation of the plea agreement, and swore he had enough

time to talk with his lawyer about the charges against him.

He told the judge: “I attempted to purchase with another in

‐

dividual controlled substances.” When asked, Collins

acknowledged he intended to buy cocaine on February 13,

2009, and that the Government could prove each element of

its case. Finally, Collins swore he understood the maximum

penalties and the constitutional rights given up by pleading

guilty. The district judge accepted the guilty plea, finding

Collins entered it “knowingly, understandingly and volun

‐ tarily after an adequate opportunity to consult with” his

lawyer.

U.S. Probation filed several iterations of the Presentence

Investigation Report (“PSR”), all of them recommending

against an acceptance of responsibility reduction because4 No. 14

‐ 3427

drugs had been found at Collins’ residence while he was on

bond. Collins got cold feet regarding his guilty plea. His at

‐

torney, citing Collins’ wish to withdraw his plea, withdrew

from the case, and the district court appointed new counsel.

Sentencing was postponed, and Collins moved to withdraw

his guilty plea. By affidavit, Collins swore he had been un

‐

der the influence of drugs during his plea colloquy and that

he had not had sufficient time to discuss his case with coun

‐

sel before entering the plea. Without a hearing, the district

judge denied the motion because Collins’ new averments

contradicted his sworn statements during his plea hearing.

Sentencing was again postponed.

Undaunted, and two days before the new sentencing

date, Collins filed a second motion to withdraw his plea,

plus a motion to continue so as to develop that motion. The

motion to withdraw, premised on Collins’ first counsel’s

purported failures to discuss the case with him, was accom

‐ panied by an unsworn affidavit. The district court found

Collins had a “demonstrated lack of credibility,” 2 and that

his new allegations—all of them contradicted by Collins’

sworn statements at the plea hearing—were so flimsy that

neither a continuance nor withdrawal of Collins’ plea were

justified.

2 During sentencing, the district court called Collins “probably one

of the most, if not the most self

‐ centered person I’ve ever addressed in

this courtroom,” and deemed his behavior “outrageous, inconsiderate

and totally selfish.” Highlighting the fact that Collins’ professed health

problems (which caused much delay in the proceedings below) com

‐ pletely contradicted his record of making weekly trips to a bail monitor

‐ ing program, the judge concluded: “[Y]ou, I’m sure, enjoyed pulling the

wool over everyone’s eyes.”No. 14

‐ 3427 5

At sentencing, the district court found Collins unentitled

to a reduction for acceptance of responsibility for two rea

‐

sons. First, there was evidence he engaged in continuing

criminal conduct after his guilty plea. Even absent that evi

‐

dence, the court found Collins’ “continued efforts to with

‐

draw his guilty plea are evidence that he has not accepted

responsibility for his criminal conduct.” Because the second

reason was an independent basis for refusing the adjust

‐

ment, the judge took no evidence from a defense witness

prepared to testify about Collins’ on

‐ bond (and purportedly

criminal) conduct.

On the parties’ joint motion, the district court benefitted

Collins by taking into account the (not yet enacted and

commonly referred to as “drugs minus two”) drug quantity

adjustment promulgated by the Sentencing Commission.

The district court calculated Collins’ Guidelines Range as 77

to 96 months, and imposed a within

‐ range sentence of 96

months’ imprisonment.

II. Analysis

On appeal, Collins challenges the denial of his motions to

withdraw his guilty plea (and the concomitant refusal of an

extension of time), the withholding of credit for acceptance

of responsibility, and the imposition of a 96

‐ month sentence.

We conclude the district court did not clearly err in finding

Collins unentitled to a plea withdrawal, or in finding Collins

failed to express acceptance of responsibility for his crime.

Collins’ final issue on appeal—that the district judge abused

her discretion in sentencing him to 96 months—is so unde

‐ veloped as to be waived.6 No. 14

‐ 3427

1. Motions to Withdraw Plea / Continue Sentencing

We review denial of a defendant’s motion to withdraw a

guilty plea for abuse of discretion. United States v. Fard

, 775

F.3d 939, 943 (7th Cir. 2015). Factual findings as to whether a

defendant had a “fair and just” reason to withdraw a plea

are upheld unless they are clearly erroneous. Id. The same

standard applies in reviewing the decision not to hold an ev

‐ identiary hearing on the matter. United States v. Trussel

, 961

F.2d 685, 690 (7th Cir. 1992).

A defendant has no absolute right to withdraw a guilty

plea before sentencing. Fard

, 775 F.3d at 943; United States v.

Pike

, 211 F.3d 385, 389 (7th Cir. 2000). If a defendant has a

“fair and just” reason, a court may allow him to withdraw

the plea. Fard

, 775 F.3d at 943; Fed. R. Crim. P. 11(d)(2)(B).

But the defendant bears a heavy burden of persuasion in

showing such a reason exists. United States v. Chavers

, 515

F.3d 722, 724 (7th Cir. 2008).

The entry of a plea is not a meaningless act. United States

v. Ellison

, 798 F.2d 1102, 1106 (7th Cir. 1986). When a defend

‐

ant makes representations at a plea hearing, those represen

‐

tations are entitled to a presumption of verity. Chavers

, 515

F.3d at 724; Pike

, 211 F.3d at 389. A defendant presenting a

reason for withdrawal that contradicts answers he gave at

the plea hearing faces an “uphill battle.” United States v. Pat

‐

terson

, 576 F.3d 431, 437 (7th Cir. 2009); United States v. Groll

,

992 F.2d 755, 758 (7th Cir. 1993).

Moving to withdraw the plea does not entitle a defend

‐

ant to a hearing. If a motion is premised on defendant’s un

‐

truthfulness during plea proceedings, a court may (unless

the defendant has a compelling explanation) reject that mo

‐No. 14

‐ 3427 7

tion out of hand. United States v. Peterson

, 414 F.3d 825, 827

(7th Cir. 2005). Whether to hold a hearing on the plea’s valid

‐ ity is a matter left to the trial court’s sound discretion. United

States v. Jones

, 381 F.3d 615, 618 (7th Cir. 2004). If no substan

‐

tial evidence is offered, or if the allegations advanced in

support of the motion are conclusory or unreliable, the mo

‐

tion may be summarily denied. Jones

, 381 F.3d at 618.

Collins’ sworn statements at his Rule 11 hearing doom

his efforts here. As appellate counsel conceded, the attesta

‐

tions supporting both of Collins’ motions to withdraw di

‐ rectly contradicted his testimony at that hearing. Both Col

‐

lins’ statements to police and his plea agreement—signed

almost a year before he filed motions to withdraw the plea—

likewise contradict the notion he was anything but guilty.

As to the first motion, Collins claimed he was influenced

by drugs during his plea hearing and that his time to consult

with counsel had been insufficient. Those claims mirror the

facts in U.S. v. Vazquez

‐ Ortero

, a case we find persuasive here.

Though he testified otherwise during his change

‐ of

‐ plea,

Vazquez

‐ Ortero later asserted he was disoriented by pre

‐ scription medication and that his lawyer failed to explain the

plea agreement. Vazquez

‐ Ortero

, 285 F. App’x 281, 283 (7th

Cir. 2008). The district court summarily denied the motion,

and this Court—because of the presumption of verity given

to Vazquez

‐ Ortero’s contrary, sworn statements—held any

appeal based on withdrawing that plea would be frivolous.

Id. at 283–84. See also United States v. Harris

‐ Thompson

, 751

F.3d 590, 603 (8th Cir. 2014) (claim defendant was under the

influence of drugs and alcohol not a “fair and just” reason to

withdraw plea when it contradicted plea agreement, state

‐

ments at time of arrest, and testimony during plea hearing).8 No. 14

‐ 3427

Vazquez

‐ Ortero is the best factual analog to the instant

case, but a long line of legal reasoning supports our result.

At a plea hearing, it is the district judge who observes a de

‐

fendant’s appearance, demeanor, and tone of voice. U.S. v.

Walker

, 447 F.3d 999, 1005 (7th Cir. 2006). Crediting the

judge’s impressions over a defendant’s subsequent “bare

protestations,” Chavers

, 515 F.3d at 725, prevents the entry of

a plea from being “some empty ceremony,” a mere “trifle[]

that defendants may elect to disregard,” United States v.

Stewart

, 198 F.3d 984, 987 (7th Cir. 1999). That is why a denial

of guilt that contradicts a defendant’s testimony does not es

‐

tablish a fair and just reason to withdraw a plea. Chavers

, 515

F.3d at 725 (citing U.S. v. Carroll

, 412 F.3d 787, 792 (7th Cir.

2005)). The district court treated Collins’ sworn, freely given

statements as conclusive. Accordingly, Collins has “no

chance of success on appeal.” Stewart

, 198 F.3d at 987. “[T]he

game is over.” Id.

Collins’ second motion to withdraw was less convincing

than the first. His statement that his first counsel had failed

to discuss the case with him was unsworn, and the district

judge in any event found his behavior ( e.g.

, pretending his

fiancée was a nurse) had established a “demonstrated lack of

credibility.” We give great deference to such factual findings,

and see no reason to disturb them here. Once a proper Rule

11 colloquy has taken place, the “’fair and just’

... escape

hatch is narrow.” United States v. Mays

, 593 F.3d 603, 607 (7th

Cir. 2010). The propriety of the plea colloquy is unchallenged

here, and Collins cannot squeeze through that hatch.

In short, it was not clear error for the district court to find

that Collins’ plea was knowing, voluntary, and untainted by

drugs. She acted within her discretion in twice holding thatNo. 14

‐ 3427 9

Collins had no fair and just reason for withdrawing his plea,

and in concluding no hearing on the matter was warranted.

Because no error undermined the decisions not to allow

withdrawal of the plea, Collins suffered no actual prejudice

when the district judge also declined to continue sentencing.

With no showing of actual prejudice, Collins has no basis to

challenge denial of a continuance. United States v. Harris

, 718

F.3d 698, 703 (7th Cir. 2013). The district court did not abuse

its discretion by proceeding with sentencing as

‐ scheduled.

2. Acceptance of Responsibility

The Sentencing Guidelines permit a two

‐ level decrease in

a defendant’s offense level “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). 3 A defendant—who has the burden of

proof on the issue, United States v. Fuller

, 15 F.3d 646, 650 (7th

Cir. 1994), is not entitled to an acceptance of responsibility

adjustment simply because he enters a guilty plea, United

States v. Dachman

, 743 F.3d 254, 259 (7th Cir. 2014) (quoting

U.S.S.G. § 3E1.1, Application Note 3).

Rather, whether a defendant has fully accepted responsi

‐ bility is a finding to be made by the trial court, based largely

on determinations regarding the defendant’s credibility and

conduct. Dachman

, 743 F.3d at 259–60. The district court’s de

‐

3 If the sentencing court, in its discretionary authority, grants the

two

‐ level reduction in subsection (a), another one

‐ level reduction is

available via U.S.S.G. § 3E1.1(b) if the offense level determined prior to

the operation of subsection (a) is level 16 or greater and the government,

stating that certain conditions are met, moves for that third point. See

United States v. Munoz

, 718 F.3d 726, 731 (7th Cir. 2013); United States v.

Mount

, 675 F.3d 1052, 1059 (7th Cir. 2012).10 No. 14

‐ 3427

termination is reviewed for clear error, only to be reversed if

this Court “is left with the definite and firm conviction that a

mistake has been committed.” U.S. v. Mayberry

, 272 F.3d 945,

947 (7th Cir. 2001) (citing United States v. U.S. Gypsum Co.

,

333 U.S. 365, 395 (1948)). The sentencing judge is entitled to

“great deference,” since he or she is uniquely positioned to

evaluate a defendant’s acceptance of responsibility. Dachman

,

743 F.3d at 260 (quoting United States v. Frykholm

, 267 F.3d

604, 610 (7th Cir. 2001)) (internal quotation marks omitted).

Here, the district court based its decision to withhold an

acceptance of responsibility adjustment on Collins’ ill

‐ fated

attempts to withdraw his plea. Longstanding precedent

permits district judges to withhold the adjustment for that

reason alone.

In U.S. v. Price

, this Court concluded that a defendant’s

“belated attempt to withdraw his guilty plea is grounds for

denial of reduction for acceptance of responsibility.” Price

,

988 F.2d 712, 722 (7th Cir. 1993). The Price panel invoked U.S.

v. Trussel

, in which a district court found a defendant’s efforts

to withdraw his plea were manipulative prevarication. Id.

(citing Trussel

, 961 F.2d 685, 691 (7th Cir. 1992)). And in U.S.

v. Fuller

, an attempt to withdraw a guilty plea was an inde

‐ pendent reason for finding a defendant did not accept re

‐ sponsibility, especially where the defendant never raised

specific instances of just how he accepted responsibility.

Fuller

, 15 F.3d at 650–51.

Collins’ argument falls squarely in the crosshairs of Price

, Trussel

, and Fuller

. As in Price

, the late effort to escape from

his guilty plea—remember, Collins’ last motion to withdraw

his plea came just two days before sentencing—is discordant

with Collins’ protestations he accepted responsibility. As inNo. 14

‐ 3427 11

Trussel

, the sentencing judge’s decision was bolstered by a

finding of Collins’ disingenuous behavior: he had a “demon

‐

strated lack of credibility.” And like the defendant in Fuller

, Collins “points to no actual instances of his acceptance of re

‐ sponsibility.” Fuller

, 15 F.3d at 651. The district court made

no clear error in finding that Collins did not clearly accept

responsibility for his offense. See U.S.S.G. § 3E1.1.

3. Reasonableness of Sentence

The parties—not the courts—must research and construct

available legal arguments. Pine Top Receivables of Ill., LLC v.

Banco de Seguros del Estado

, 771 F.3d 980, 987 (7th Cir. 2014)

(quoting United States v. Holm

, 326 F.3d 872, 877 (7th Cir.

2003)). Accordingly, this Court has long warned that “per

‐ functory and undeveloped arguments” are deemed waived.

Id.

The entirety of Collins’s final argument is a single sen

‐

tence in his issues presented: “Did the District Court err by

sentencing Adrian Collins near the top of the applicable

Guideline range?” That question is unsupported by argu

‐

ment, bereft of citations, and completely undeveloped in

Collins’ brief. As such, it is an “afterthought without citation

to authority” insufficient to raise an issue on appeal, and is

deemed waived. Ordower v. Feldman

, 826 F.2d 1569, 1576 (7th

Cir. 1987).

III. Conclusion

The district court acted within its discretion in denying

Collins’ motions to withdraw his guilty plea (and related

motion to continue) without a hearing. Likewise, the conclu

‐

sion that Collins did not qualify for an acceptance of respon

‐ sibility reduction was within the sentencing judge’s discre

‐12 No. 14

‐ 3427

tion. Any argument targeting the reasonableness of Collins’

sentence is waived. We AFFIRM Collins’ 96

‐ month sentence.