NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1293

_____________ UNITED STATES OF AMERICA

v. SALAHUDIN SHAHEED, Appellant
On Appeal from the U nited States District Court for the Eastern District of Pennsylvania District Court No. 2

- 15

- cr - 00187

- 002 District Judge: The Honorable Harvey Bartle, III Submitted P ursuant to Third Circuit L.A.R. 34.1(a)

April 24, 2017 Before: SMITH, Chief Judge , McKEE , and RENDELL , Circuit Judges

(Filed: May 5, 2017 )

_____________________ OPINION *

_____________________ SMITH, Chief Judge

* This disposition is not an opinion of the full c ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

The defendant, Salahudin Shah eed, appeals the denial of his motion to withdraw his guilty plea

. Shaheed pled guilty at the beginning of his trial shortly after the second of his two co defendants pled guilty . He pled g uilty to one count each of (1) conspira cy to commit Hobbs Act robbery, (2) attempted Hobbs Act

r obbery, and (3) federal kidnapping. More than two months after he pled guilty , but before his sentencing, Shaheed filed a pro se motion to withdraw his guilty plea. The District Court appointed new counsel for Shaheed and held a two

- day evidentiary hearing on his motion

. Following the hearing, the District Court denied the motion

. Shortly thereafter , the District Court sentenced Shaheed to 240 months ’ impriso nment on the first two counts and 365 months ’ imprisonment on the third count , each sentence to be served concurrently. Because Shaheed has failed to sufficiently demonstrate entitlement to withdrawal of his guilty plea, we will affirm.
I The D istrict C ou rt had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Siddons , 660 F.3d 699, 703 (3d Cir. 2011) . We3

revi ew the District Court’s findings of fact related to the motion for clear error.
See United States v. Martinez , 785 F.2d 111, 113 n.1 (3d Cir. 1986)

. II “[W] ithdrawal of a guilty plea is not an absolute right,” United States v. Wilson , 429 F.3d 455, 458 (3 d Cir. 2005) , and so a “defendant is not entitled to withdr aw [a] plea simply at his whim, ” United States v. Jones , 336 F.3d 245, 252 (3d Cir. 2003) . Rather, u nder Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure, “ [a] defendant may withdraw a plea of guilty .

. . after the court accepts the plea, but before it imposes sentence if .

. . the defendant can show a fair and just reason for requesting the withdrawal.” The defendant has t he burden of showing a fair and just reason for withdrawal of h is guilty plea, and that burden is “substantial

. ” Jones , 336 F.3d at 252

. To determine whether a defendant has made th at requisite showing , a district co urt must consider three factors:

“ (1) whether the defendant asserts his innocence; (2 ) the strength o f the defendant’ s reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal .” Id. Shaheed directs his arguments at each of those three factors . First, as to his innocence, he claims he assert ed and has demon strated his innocence. Second, regarding the strength of his reasons for withdrawing his plea, Shaheed argues that4

his trial counsel misled him into believing he could raise disputed fa ctual matters at his sentencing; he was under duress when he pled g uil ty because he lacked glasses; his trial counsel told him that his mo ther wanted him to plead guilty; and someone had threatened his sister that she would be ki lled if he did not plead guilty. Third, as to prejudice, Shaheed contends that the Government ha s not shown it would be prejudice d by the plea withdrawal . Those arguments fail to make an adequate showing that Shaheed should have been permitted to withdraw
his guilty plea.
First , Shaheed “ did not mean ingfully reassert his innocence ” after pleading
gu ilty. Id. at 253

. “ Bald assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea. ” Id. at 252 ; see also United States v.
Brown , 250 F.3d 811, 818 (3d Cir. 2001) ( “Assertions of innocence must be buttressed by facts in t he record that support a claimed defense.” (quoting United States v. Salgado

- Ocampo , 159 F.3d 322, 326 (7th Cir. 1998) ) ) . I n his initial motion to withdraw his plea, Shaheed made no assertion of innocence. Only after reviewing the Government’s response t o his motion , in which the Government noted that Shaheed failed to reassert innocence, did Shaheed claim his innocence. Shah eed now argues that the lack of DNA or fingerprint evidence demonstrate s his innocence. He also points out that none of the victim ’s descriptions of the5

perpetrators resembled him. The lack of DNA or fingerprint evidence does not meaningfully suggest Shaheed’s innocence; many criminal cases have no such evidence. Nor does the misdescription of the perpetrators meaningfully support Shaheed’s assertion of innocence, given that the victim was bound and blindfolded and her assailants wore masks. Shaheed also faced significant evidence of guilt , including his purchase of the Taser that was used on the victim and inculpating testim ony fr om at least one of his co defendants who had already pled guilty. Shaheed says nothing to cast doubt on this substantial evidence. We therefore conclude that Shaheed failed to demonstrate that the first Jones factor supports his motion. See Martinez , 785 F.2d at 113 n.1 ( noting that the “weight of a defendant’s assertions .

. . are preeminently issues for the hearing Court to decide” (alteration in original) ( quoting Gov ’ t of V.I. v. Berry , 631 F.2d 214, 220 (3d Cir. 1980) ) ). Second , Shaheed’s reasons for withdrawing his plea are unpersuasive. He makes four arguments as to this second Jones factor

. He first contends that h is trial counsel told him that he would be able to raise disputed ma tters at his sentencing hearing. The District Court did not clea rly err in rejecting that contention. Trial counsel was an experienced federal criminal attorney. When directly asked by the District Court at the withdrawal motion6

hearing whether he ever advised Shaheed that “he was to defer any objections or
any comme nts with respect to the guilty plea until right before sentencing,” Shaheed’s trial counsel adamantly responded that he had not and recalled explaining to Shaheed that there “was no going back” if he pled guilty

. JA506. Shaheed points to nothing in the r ecord to undermine that assertion , and the District Court consequently made no clear error in crediting trial counsel’s testimony. Shaheed next claims that he did not have his glasses to read his guilty plea and that his trial counsel spoke too softly to him when reading him the plea. Shaheed, though, did not raise these issues before the District Court at his plea colloquy

. The District Court specifically asked Shaheed whether he understood the guilty plea document, and he said that he did. Moreover, his trial counsel testified that, when he read Shaheed the guilty plea , Shaheed heard him and understood what he was saying . T he Dist rict Court did not find Shaheed’ s assertion to the contrary to be credible. The District Court did not err . Shaheed als o asserts that his trial counsel told him that his mother wanted him to plead guilty when she purportedly did not. Trial counsel, however, received a text message from Shaheed’s mother the night before Shaheed pled guilty stating that she had spoken with Shaheed and that he should “take” the7

guilty plea

. JA228. And e ven if his mother did not want him to plead guilty , it cannot be ignored that Shaheed was thirty

- four years old at the time of the plea , is intelligent, and was a business owner. He cannot b lame his mother’ s wishes , whether genuine or not, for his decision to plead guilty. This is hardly the stuff of genuine duress. Finally, Shaheed argues that his sister was threatened that she would be killed if he did not plead guilty. The District Court concluded that no threat
occurred , and, even if it di d, it did not influence Shaheed’ s decision. The circumstances surrounding the threat support the District Court’s conclusion about the veracity of Shaheed’s claim. Shaheed did not explain why anyone w ould make
such a threat. The first threat, which allegedly occurred a day before Shaheed pled guilty , was not reported to police until almost a week after Shaheed had pled guilty , and the purported police report concerning the threat was never submitted
i nto evidence

. Shaheed’ s sister refused to cooperate with the FBI in investigating the alleged threat. She also claimed that she received a second threat after Shaheed had already pled guilty, undermining the claimed reason for the supposed threat

. For h is own part, Shaheed never told his trial counsel about the threat. Shaheed also failed to satisfactorily explain why he explicitly stated at his change of plea hearing that no one made a threat to induce him to plea d if this threat did8

actually occur. S ee Siddons , 660 F.3d at 703 (“[A] defendant must also ‘ give sufficient reasons to explain why contradictory positions were taken before the district court. ’” (quoting Jones , 336 F.3d at 253 )). Even if the threat before Shaheed pled guilty occurred, Shahee d claims that his mother’ s whispered statement in court, telling him no more than “somebody has threatened [your sister] over this,” put him under such duress that he pled guilty the next day.
JA254. Yet, d espite having the opportunity to follow up with his mother the night
she told him of the threat, he and his mother made no mention of the threat during their multiple telephone conversations

. Thus, given his complete lack of knowledge about the circumstances of the threat, the record fails to show that any purported threat influenced Shaheed to plead guilty to multiple federal crimes

. T he District Court therefore did not err in rejecting Shaheed’s argument that a
threat to his sister cause d him to plead guilty. Third , contrary to Shaheed’s assertion, the District Court correctly found that the Government would be prejudiced by the withdrawal of his guilty plea

. See
Jones , 336 F.3d at 252 (stating that the third factor in assessing a guilty plea withdrawal is the Government’s prejudice but noting that “ the Government need not show such prejudice when a defendant has failed to demonstrate that the other factors support a withdrawal of the plea ”). In particular, the Government “would9

have an extremely difficult task to call [the victim] as a witness with out causing her a severe emotional setback, even assuming that she would be able to testify.” JA18. The District Court found that the victim, who had been “beaten, bound, gagged, .

. . blindfolded,” and “subject to the use of a Taser,” had been attemptin g to “put her life together” following Shaheed’s guilty plea. Id. The Government would, of course, also have to arrange again for other civilian and law enforcement witnesses after already m aking those preparations once. Under these
circumstances , w e ca

nnot say that the District Court’s finding of prejudice is clearly erroneous.
III For the reasons stated above, we will affirm the District Court’s denial of Shaheed’s motion to withdraw his guilty plea.