NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1130

___________

UNITED STATES OF AMERICA

v.

WILLIE BROOKS,

 Appellant

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Criminal No. 07-cr-00705-001

(Honorable Gene E.K. Pratter)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 23, 2011

Before: McKEE, Chief Judge, SCIRICA and GARTH, Circuit Judges.

(Filed: June 14, 2011)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

After steadfastly insisting on presenting his case to a jury throughout the 

protracted pre-trial process, Willie Brooks abruptly informed his attorney of his desire to 

plead guilty to two counts of unlawful possession of a firearm by an armed career 

criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), just as his oft-continued trial 
2

was set to commence. Prior to sentencing, however, Brooks moved to withdraw his guilty 

plea. The gist of his motion was twofold. First, he claimed to have believed his attorney 

had not zealously formulated a defense on his behalf and was inadequately prepared for 

trial. Second, he alleged his attorney provided erroneous advice regarding his likely 

sentencing exposure. Troubled by his attorney‟s alleged lack of devotion to his cause and 

purportedly operating under the mistaken impression that he would receive less than the 

mandatory minimum of fifteen years‟ imprisonment, Brooks claimed to have believed he 

had “no other choice” but to plead guilty. After conducting an evidentiary hearing, the 

District Court denied Brooks‟s motion. Because the court did not abuse its discretion in

rejecting Brooks‟s attempt to withdraw his guilty plea, we will affirm.

I.

Brooks, represented by his attorney, Kai Scott, pleaded guilty in open court on 

January 26, 2009, to both counts charged in the indictment.1 As mandated by Fed. R. 

 

1 After witnessing Brooks speed through a red light on July 13, 2007, Newtown 

Township Police Officer Paul Deppi attempted to effect a traffic stop. Brooks proved 

unwilling to submit, however, and he fled at high speeds, leading Deppi and Officer 

Christopher Joseph on a chase through Tyler State Park that ended only after Brooks had 

struck both officers‟ patrol vehicles with his minivan. Once halted, Brooks ignored 

instructions to place his hands above his head and instead appeared to reach toward the 

passenger seat. Duly alarmed, Joseph smashed Brooks‟ passenger window—which had 

been damaged during the mid-chase collision—with the butt of his service weapon, and 

Deppi deployed his Taser in a mildly successful effort to subdue the uncooperative 

Brooks, whom the officers eventually removed from the van and placed in handcuffs. In 

the course of executing a search warrant on Brooks‟ minivan, detectives seized a black 

duffle bag in which they found a Smith & Wesson 9mm handgun loaded with 15 rounds, 

including one in the chamber. The gun was registered to Brooks‟ girlfriend, who later 

pleaded guilty to being a straw purchaser of the firearm on Brooks‟ behalf. Pennsylvania 

State Police determined the gun was a ballistics match to bullets fired at police during an 

altercation in Radnor Township on December 6, 2006. Brooks was indicted for both the 
3

Crim. P. 11(b), the court engaged Brooks in a lengthy change-of-plea colloquy. While 

under oath, Brooks represented (1) he was satisfied with his attorney‟s advice and 

advocacy; (2) he understood the charges against him and recognized that, by pleading 

guilty, he was voluntarily relinquishing a host of constitutional and statutory rights; (3) he 

had not received any agreement or promises from the government in exchange for his 

plea; (4) the prosecutor had accurately recited the factual and legal basis for the plea; (5) 

he understood he faced a mandatory minimum sentence of fifteen years‟ imprisonment 

and could be sentenced, at the court‟s discretion after reviewing the sentencing 

guidelines, to a term of life imprisonment; (6) he appreciated he would be estopped from 

withdrawing his guilty plea should the court impose a sentence more severe than either he 

or his attorney anticipated; and (7) his decision to change his plea had been made of his 

own accord and was not the product of threats or coercion.

On June 8, 2009, the date on which Brooks‟s sentencing hearing had been 

scheduled to take place, Brooks moved for the appointment of new counsel and 

announced he wished to withdraw his guilty plea. New counsel Wayne Maynard was 

appointed on June 11, 2009, and the court held an evidentiary hearing on December 10, 

2009. Brooks, testifying again under oath, claimed he felt more or less obligated to plead 

guilty because he believed Scott had not devised a coherent trial strategy and because 

Scott had led him to believe he would “probably get no more than 15 years [in prison].” 

Scott forcefully refuted Brooks‟s characterization of her representation. Despite having 

 

Newtown and Radnor incidents. United States v. Brooks, No. 07-705-1, 2010 U.S. Dist. 

LEXIS 57650 at *1-3 (E.D. Pa., May 24, 2010).
4

conveyed her assessment that the case would be “very difficult to win,” she remembered 

her client being “emphatic about going to trial,” and she chronicled the manner in which 

she prepared accordingly. She also recalled counseling Brooks about his likely sentencing 

exposure. She testified she told him that, based on his classification as an armed career 

criminal, his criminal history category of VI and the corresponding offense level of 34 

would subject him to at least a mandatory minimum sentence of fifteen years. 

The court denied Brooks‟s motion.2Finding Brooks had failed to establish a “fair 

and just” reason warranting withdrawal of his guilty plea, the court reasoned Brooks had 

neither supported his weak assertion of innocence with exculpatory evidence in the 

record nor demonstrated sufficiently strong justifications for his attempted withdrawal. 

The court deemed Brooks‟s “meager and disingenuous” presentation, in which he asked 

the court to “indulge his whims” and absolve him of “the consequences of his own 

knowing and voluntary actions,” an affront to “the integrity of the judicial system.” 

United States v. Brooks, No. 07-705-1, 2010 U.S. Dist. LEXIS 57650 at *11-12 (E.D. 

Pa., May 24, 2010). The court sentenced Brooks to 262 months‟ imprisonment on each of 

the counts, to be served concurrently, followed by five years‟ supervised release. Brooks 

timely appealed.3

II.

 

2

Throughout this opinion, we will cite to the District Court‟s Second Amended 

Memorandum, which was filed on May 24, 2010.

3

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. § 1291.
5

“We review a district court‟s ruling denying a defendant‟s motion to withdraw his 

guilty plea before sentencing pursuant to an abuse of discretion standard.” United States 

v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). “The district court retains a great deal of 

discretion to deny a withdrawal motion.” United States v. Jones, 979 F.2d 317, 318 (3d 

Cir. 1992), superseded by statute on other grounds as stated in United States v. 

Robertson, 194 F.3d 408, 414 (3d Cir. 1999). “[A] guilty plea is a grave and solemn act.” 

Brady v. United States, 397 U.S. 742, 748 (1970). Accordingly, it “may not automatically 

be withdrawn at the defendant‟s whim.” United States v. Brown, 250 F.3d 811, 815 (3d 

Cir. 2001). Rather, the defendant bears a “substantial” burden: he must persuade the court 

a “fair and just reason” exists for permitting withdrawal. Jones, 336 F.3d at 252 (quoting 

Fed. R. Crim. P. 11(d)(2)(B)). In assessing whether a defendant has satisfied this burden, 

a court must consider “(1) whether the defendant asserts his innocence; (2) the strength of 

the defendant‟s reasons for withdrawing the plea; and (3) whether the government would 

be prejudiced by the withdrawal.” Id.4

A.

The first factor requires a defendant both to proclaim his innocence and to fortify 

this assertion by identifying exculpatory evidence in the record. See Brown, 250 F.3d at 

818 (“Bald assertions of innocence . . . are insufficient to permit a defendant to withdraw 

 

4 Because “the Government is not required to show prejudice when a defendant has 

shown no sufficient grounds for permitting withdrawal of a plea,” United States v. 

Martinez, 785 F.2d 111, 116 (3d Cir. 1986) (internal quotation marks omitted), the 

District Court confined its analysis to the first two prongs of the test outlined in Jones. 

Given the inadequacy of Brooks‟s presentation on these prongs, we too decline to 

undertake an extended prejudice inquiry.
6

her guilty plea. Assertions of innocence must be buttressed by facts in the record that 

support a claimed defense.”) (internal quotation marks omitted). Moreover, after 

accepting responsibility for the charged offenses under oath at a properly conducted Rule 

11 colloquy, a defendant must “not only reassert innocence, but give sufficient reasons to 

explain why contradictory positions were taken before the district court.” Jones, 979 F.2d 

at 318; see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in 

open court carry a strong presumption of verity. The subsequent presentation of 

conclusory allegations unsupported by specifics is subject to summary dismissal, as are 

contentions that in the face of the record are wholly incredible.”).

In evaluating Brooks‟s showing on this front, the District Court discerned scant 

support for the proposition that Brooks had proclaimed his innocence and even less 

support for the notion that he had “provided . . . record facts to „buttress‟ any such 

assertion with any recognizable defense.” Brooks, 2010 U.S. Dist. LEXIS 57650 at *11.5

At the hearing on Brooks‟s motion to withdraw his guilty plea, Maynard encouraged the 

court to view his client‟s initial commitment to pursuing the case to trial as tantamount to 

a profession of innocence. After musing that this interpretation would necessitate “a leap 

of faith of some sort,” the District Judge, speaking from the bench, addressed Brooks‟s 

inability to muster support for this purported assertion:

 

5 At the hearing on his motion to withdraw the guilty plea, Brooks intimated he was in 

possession of information that might have gone toward his defense. Despite being 

prompted by his attorney to divulge “the potential value” of this information, Brooks 

declined to reveal its substantive content, opting instead to save it for the trial he hoped 

the District Court would order. Even assuming Brooks did possess such information, his 
7

[E]ven if you had actually articulated in words of one or two syllables a 

claim of actual innocence, that simple claim is not sufficient under the cases 

to show that you have a fair and just reason for withdrawing your guilty 

plea. I must say that everything I know about this case would suggest, 

indeed, that the evidence is inconsistent with any claim of innocence, if you 

had made such a claim. And I‟m going to assume that Mr. Maynard has 

labored mightily and with the highest professional talent to buttress your 

position but he has been unsuccessful because he could not be successful in 

this case given the lack of evidence to support the notion that you could, 

with any believability, assert actual innocence.

Furthermore, in its order denying Brooks‟s motion, the court found his “excuses for 

having taken numerous contradictory positions under oath at his guilty plea hearing as 

compared to his December 10 story were, to say the least, unpersuasive and disrespectful, 

not only of the Court but of his own character and the value of his word.” Brooks, 2010 

U.S. Dist. LEXIS 57650 at *11.

Given the weak nature of Brooks‟s alleged assertion of innocence, his inability to 

direct the court‟s attention to evidence that might have exonerated him of the charged 

offenses was doubly damning. And, as the court concluded, Brooks‟s failure to furnish a 

valid rationale for repudiating the statements he offered during the Rule 11 colloquy 

further undermined the plausibility of his assertion of innocence. We find the court‟s 

logic sound and agree that application of the first factor weighed against granting 

Brooks‟s motion. 

B.

Tacitly acknowledging the manifest weakness of his showing on the first factor, 

Brooks tries to discount its significance and to focus instead on the second factor, i.e., the 

 

calculated reticence leaves us unable to disturb the court‟s finding as to the dearth of 
8

supposed strength of his justifications for attempting to withdraw his plea. As noted, 

Brooks staked his motion on Scott‟s allegedly lackluster preparation for trial and on her 

alleged failure to offer accurate advice about Brooks‟s possible sentencing exposure. The 

District Court, however, found Brooks‟s “11th hour allegations against his former 

attorney are without merit and are unavailing to him as a basis upon which to permit a 

wholesale abandonment of his many sworn statements at his guilty plea hearing.” Brooks, 

2010 U.S. Dist. LEXIS 57650 at *12. Because the court‟s findings were premised on 

credibility determinations made after observing Brooks and Scott testify, we are satisfied 

the court did not abuse its discretion in labeling insufficient Brooks‟s proffered reasons 

for attempting to withdraw his plea.

“The good faith, credibility and weight of a defendant‟s assertions and those made 

on his behalf in support of a motion [to withdraw a guilty plea prior to sentencing] are 

preeminently issues for the hearing court to decide.” United States v. Washington, 341 

F.2d 277, 281 (3d Cir. 1965). Based on the testimony provided at the evidentiary hearing, 

the court concluded Brooks‟s “reasons for pleading guilty—and his reasons for wanting 

to withdraw that plea—are simply not credible, especially in the face of Ms. Scott‟s 

wholly credible account recounting the circumstances leading up to and surrounding Mr. 

Brooks‟s guilty plea.” Brooks, 2010 U.S. Dist. LEXIS 57650 at *12. During the hearing 

on Brooks‟s motion to withdraw his plea, the court stated:

I believe totally Ms. Scott when she tells me she was prepared to do her 

level best for you, and that she had prepared that which she could prepare. 

But a lawyer, such as Ms. Scott, cannot make up stuff and go through the 

 

evidence buttressing his alleged assertion of innocence. 
9

trial because somebody wants a trial. A lawyer is obliged to have a reason 

for submitting evidence and making arguments in court on behalf of a 

client. I believe that she is credible when she tells me that she was ready, 

she was willing and she was able to proceed on your behalf. . . . 

But more importantly, when we were together, in January of 2009, you had 

multiple opportunities to tell me of any discomfort or lack of conviction 

that you had with respect to entering a guilty plea. And I find it extremely 

distressing that you would take an oath so lightly as to now come and say 

that, well, you were just saying what you thought I wanted to hear. So I 

don‟t know . . . when you‟re telling me the truth, and I certainly have no 

reason to believe you here today.

Such credibility findings are committed in the first instance to the discretion of the trial 

judge. See United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985) (“[E]valuation [of the 

defendant‟s demeanor when entering a guilty plea] is primarily within the province of the 

district court.”); Gov’t of the Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir. 1980) 

(“The trial court recognized that credible assertions of innocence by the defendant are of 

considerable significance, but found defendant‟s assertions here incredible.”). 

Beyond Brooks‟s affirmation at the Rule 11 colloquy that he was satisfied with 

Scott‟s advice and advocacy, the court found Brooks‟s allegations concerning Scott‟s 

representation not persuasive for several reasons. At the hearing on Brooks‟s motion to 

withdraw his plea, Scott recounted the steps she had taken on her client‟s behalf. Heeding 

Brooks‟s instruction to prepare for trial, Scott moved to sever the two charges and to 

suppress evidence seized at the time of Brooks‟s arrest. Although the court ultimately 

denied both motions, it conducted a suppression hearing at which Scott vigorously argued 

her client‟s position. Scott requested and was granted several continuances in order to 

gather additional evidence, including an independent ballistics analysis, intended to 
10

bolster Brooks‟s defense at trial. And the court rejected Brooks‟s specious contention that 

Scott‟s failure to develop either an alibi or a justification defense demonstrated a lack of 

fidelity to his cause.6 Brooks eventually conceded Scott had simply informed him that 

developing a defense to the charges was “going to be hard,” a reality the court attributed 

to Brooks‟s clear culpability.

As for Scott‟s allegedly erroneous sentencing advice, the court permissibly 

accorded little weight to Brooks‟s assertion that Scott had counseled him to anticipate his 

maximum sentencing exposure to be in line with the mandatory minimum of fifteen 

years. Scott testified at length about her discussions with Brooks regarding how the 

sentencing guidelines would likely apply were he to plead guilty, and the court found her 

testimony credible.7 Nevertheless, because the court explicitly and accurately 

 

6 Although Brooks testified obliquely about possessing a potential alibi defense, he 

admittedly never relayed any such information to Scott during her time as his attorney. 

And, at Brooks‟s urging, Scott sent her investigator to speak with Brooks‟s landlord 

about alleged threats and vandalism that might have served to underpin a justification 

defense. The investigator‟s repeated attempts to locate the landlord proved fruitless, and 

Scott called off the search when Brooks informed her the alleged incidents occurred more 

than six months prior to his arrest. Although Brooks attempts to impugn Scott for failing 

to pursue this defense more assiduously, Scott reasonably believed a justification defense 

could not be predicated on such remote events and chose to allocate resources elsewhere. 

See United States v. Paolello, 951 F.2d 537, 540-41 (3d Cir. 1991) (adopting “a 

restrictive view of the justification defense in the context of 18 U.S.C. § 922 charges” and 

requiring the defendant to prove “he was under unlawful and present threat of death or 

serious bodily injury” as one of the defense‟s essential elements); United States v. Alston, 

526 F.3d 91, 96 n.7, 97 (3d Cir. 2008) (“Only in rare circumstances will anything but an 

immediate emergency constitute a present threat. . . . The defendants who have been 

granted the defense faced split-second decisions where their lives, or the lives of others, 

were clearly at risk.”) (internal quotation marks omitted).

7

Indeed, it is difficult to reconcile Brooks‟s willingness to rely on Scott‟s predictions 

about his sentence with the skepticism he allegedly harbored about her reliability in all 

other respects. 
11

admonished Brooks regarding his maximum potential exposure and the court‟s discretion 

during the Rule 11 colloquy, Scott‟s alleged conjectures about Brooks‟s sentence were 

legally “irrelevant.” United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007); see also 

United States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged 

misrepresentations that [the defendant‟s] former counsel may have made regarding 

sentencing calculations were dispelled when [the defendant] was informed in open court 

that there were no guarantees as to sentence, and that the court could sentence him to the 

maximum.”).

Required to set forth strong reasons for withdrawal, Brooks instead offered only 

dubious allegations that were flatly rebutted by Scott. Having observed Brooks testify at 

both hearings, the court declared it had “no doubt that at the time he entered his guilty 

plea he did so with a full appreciation of the import of his actions, admitting all the facts 

attendant to the elements of the crimes with which he was charged.” Brooks, 2010 U.S. 

Dist. LEXIS 57650 at *12; see also See DiFederico v. Rolm Co., 201 F.3d 200, 208 (3d 

Cir. 2000) (“[T]he district court‟s findings involved credibility determinations which are 

supported by the record and which we will not second-guess.”). Because Brooks failed to 

proffer sufficiently strong reasons for permitting withdrawal of his plea, the court 

properly found this factor weighed against granting his motion.

III.

Brooks has not carried his “substantial” burden of demonstrating a “fair and just 

reason” for withdrawing his guilty plea. See Jones, 336 F.3d at 252. Therefore, we will 

affirm the judgment of the District Court.