13-1019-cr United States v. Dean UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER Rulings by summary order do not have precedential effect. Ci tation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Pr ocedure 32.1 and this court’s Lo cal Rule 32.1.1. When citing a summary order in a document filed with this court, a pa rty must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citinga summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 25 thday of June, two thousand and fourteen. 3 4 PRESENT: 5 6 B ARRINGTON D. P ARKER , 7 D EBRA A NN L IVINGSTON , 8 C HRISTOPHER F. D RONEY , 9 10 Circuit Judges

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______________________________________________ 12 13 U NITED S TATES OF A MERICA , 14 15 Appellee , 16 -v.- No. 13-1019-cr 17 18 E DWARD D EAN AKA S KIP , 19 Defendant-Appellant

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_______________________________________________ 21 R OBERT A. C ULP , Law Office of Robert A. Culp, Garrison, 22 NY, for Defendant-Appellant

. 23 S ONJA M. R ALSTON , Attorney, Appellate Section, Mythili 24 Raman, Acting Assistant Attorney General, Denis J. 25 McInerney, Deputy Assistant Attorney General, U.S. 26 Department of Justice, Criminal Division, Washington, DC; 27

1Brenda Sannes, Assistant United States Attorney,for Richard 1 S. Hartunian, United States Attorney for the Northern District 2 of New York, Syracuse, NY, for Defendants-Appellees

. 3 UPON DUE CONSIDERATION , it is hereby ORDERED, ADJUDGED , and DECREED 4 that the decision of the District Court is REMANDED. 5 On August 7, 2012, Defendant-Appellant EdwardDean pleaded guilty in the Northern 6 District of New York to production of child pornography, in violation of 18 U.S.C. § 2251(a), and 7 to transporting a minor across state lines for the purpose of engaging in illicit sexual conduct, in 8 violation of 18 U.S.C. § 2423(a). On December 21, 2012, Dean orally moved, pro se , to withdraw 9 his guilty plea. The district court denied th is motion by written opinion on February 6, 2013. The 10 district court (McAvoy, J. ) sentenced Dean on March 4, 2013, to a term of 300 months’ 11 imprisonment, to be followed by 20 years of supervised release. Dean timely appeals both the 12 district court’s denial of his withdrawal motion and his sentence. We assume the parties’ familiarity 13 with the underlying facts, the procedural history of the case, and the issues on appeal. 14 * * * 15 We review the denial of a motion to withdr aw a plea for an abuse of discretion and will 16 reverse only when “the denial of a withdrawal mo tion rests on an error of law, a clearly erroneous 17 finding of fact, or otherwise ca nnot be located within the range of permissible decisions.” United 18 States v. Gonzalez , 420 F.3d 111, 120 (2d Cir. 2005) (internal quotation marks omitted). 19 A motion to withdraw a plea before sentencing may be granted when the defendant 20 demonstrates a “fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). 21 “While this standard implies that motions to withdraw prior to sentence should be liberally granted, 22 a defendant who seeks to withdraw his plea bears th e burden of satisfying the trial judge that there 23

2are valid grounds for withdrawal.” United States v. Doe , 537 F.3d 204, 210 (2d Cir. 2008) (internal 1 quotation marks omitted). “To determine whether the defendant has proffered a ‘fair and just 2 reason’” justifying withdrawal, “a district court s hould consider, inter alia: (1) the amount of time 3 that has elapsed between the plea and the motion; (2) whether the defendant has asserted a claim of 4 legal innocence; and (3) whether the government woul d be prejudiced by a withdrawal of the plea.” 5 Id. 6 Dean asserts that in order to resolve his w ithdrawal motion, the district court improperly 7 contacted the U.S. Marshals Service, ex parte , to investigate Dean’s ment al state at the time of his 8 plea. At sentencing, in a colloquy with the defendant, the district court stated that it communicated 9 with the Marshals Service or perhaps others con cerning Dean, but the record does not describe these 10 communications in any detail. To aid our review on appeal, we ask the district court to explain the 11 circumstances surrounding these communications, including what information was received and 12 from whom. Within twenty days of the district court’s response to this order, any party to the 13 proceedings may restore jurisdiction to this pane l by giving notice to the Clerk of the Court. See 14 United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994). 15 For the foregoing reasons, the action is hereby REMANDED to the district court for further 16 proceedings. * 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21

* We express no views on Dean’s procedural and substantive reasonableness challenges to his sentence and will resolve those issues upon jurisdiction being restored in this Court. 3