2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
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w . v i l l a no v a . e du/thir dc ir c uit_2011/1777NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 0 8

- 4671

_____________ UNITED STATES OF AMERICA

v. JAVIER CHECO,

Appellant

_____________ On Appeal from the United States District C ourt for the Eastern District of Pennsylvania

(No. 06

- 443 ) Dist rict Judge: Hon. Paul S. Diamond Submitted January 28 , 2011 Before: FUENTES, CHAGARES, and ROTH, Circuit Judges

.

(Filed : February 17, 2011 )

____________ OPINION

____________ CHAGARES, Circuit J udge

. Javier Checo appeals his conviction on the grounds that the District Court erroneously denied his motion to withdraw his guilty plea. Checo maintains that he was misinformed about his sentencing guidelines range such that he di d not knowingly and2

intelligently plead guilty. For the reasons that follow, we will affirm the judgment of conviction

. I. We write for the parties‟ benefit and recite only the facts essential to our disposition. In May of 2006, Maria Diaz purchased a total of five guns at the Army & Navy Store in Whitehall , Pennsylvania. Although Diaz certified that she was purchasing the guns only for herself, Diaz was purchasing the guns for Javier Checo. C heco drove her to the s t ore, picked out the gu ns, supplie d the funds and took possession of the firearms after the purchase. Checo used Diaz as a straw

- purchaser because he was a convicted felon and was prohibited from making the purchases himself. Checo sold the guns purchased through Diaz to Reymond Gomez. In early July 2006 , Checo had Diaz and other straw

- purchasers attempt to purchase guns on his behalf, but all the purchases were delayed until backgroun d checks were completed. On August 2, 2006, after Diaz‟s purchase was cleared, Checo and Gomez drove Diaz to pick up the guns. While Diaz was completing the purchase, officers from the Bureau of Alcohol, Tobacco, and Firearms arrested Checo and Gomez. Checo was charged with conspiracy to make false statements to a federal firearms licensee pursuant to 18 U.S.C. § 371, twelve counts of making and aiding and abetting
the ma king of false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A), eleven counts of interstate travel for the purpose of unlicensed dealing in firearms pu rsuant to 18 U.S.C. § 924(n), and five counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).3

Checo entered into a written plea agreement whereby he pled guilty to the conspiracy charge, eleven counts of making fal se statements to firearm dealers, ten counts of interstate travel to deal in unlicensed firearms, and four counts of being a fe lon in possession of a firearm. The plea agreement explicitly stated the statutory maximum sentences for each offense and indica ted that the potential maximum sentence could be 150 years imprisonment. Further, the plea agreement stated that Checo could not withdraw his plea if the Court failed to follow any of the recommendations, motions, or stipulations made by the parties in th e agreement. Additionally, Checo and the Government entered into sentencing guideline s stipulations, but the plea agreement noted that the Government did not promise or guarantee a certain sentence for Checo. Checo also agreed that he was satisfied with his lawyer and he had fully discussed the plea agreement with counsel. On September 28, 2007, the District Court conducted a hearing, where it thoroughly reviewed the plea agreement with Checo and confirmed that Checo understood its terms and his rights. Specifically, the District Court reviewed the potential penalties and confirmed that Checo understood he could receive the maximum penalty and could not withdraw his plea if he received a more severe sentence than expected. In December 2007, the Probatio n Office issued the Presentence Report indicating a sentencing guideline s range of 108 to 135 months

. In July 2008, Checo filed a motion to withdraw his guilty plea , which the District Court subsequently denied. On November4

25, 2008, the District Court s entenced Checo to 235 months of imprisonment. 1 Checo timely appealed. 2
II. We review a district court‟s denial of a defendant‟s motion to withdraw his guilty plea before sentencing for abuse of discretion. United States v. King , 604 F.3d 125, 139 (3d Ci r. 2010) (citing United States v. Brown , 250 F.3d 811, 815 (3d Cir. 2001)) ; United
States v. Jones , 336 F.3d 245, 252 (3d Cir. 2003). A defendant may withdraw a guilty plea before sentencing if the defendant can show a “ fair and just reason for requestin g the withdrawal. ” Fed. R. Crim. P. 11(d)(2)(B). We have recognized that the burden of showing a “fair and just reason” for withdrawal is “ substantial ” and a defendant is not entitled to withdraw his plea “simply at his whim. ” Jones , 336 F.3d at 252 . I n determining whether a defendant has a “fair and just reason” for withdrawal of his guilty pl ea, “district courts consider whe ther: (1) the de fendant „asserts his innocence ; ‟ (2) the defendant proffered strong reasons justifying the withdrawal; and (3) t he government woul d be prejudiced by withdrawal.” King , 604 F.3d at 139

. Defendants are not permitted to rely on bald assertions of inno cence to support their withdrawal of a guilty plea, but must support their innocence by facts in the record. Jones , 3 36 F.3d at 252 . If a

1 Due to Checo‟s inappropriate actions against the Government prior to sentencing, the District Court denied a three

- level downward adjus tment for acceptance of responsibility, imposed a two

- level upward adjust ment for obstruction of justice and affirmed a four

level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6). Hence, the advisory sentencing guideline s range was 188 to 235 months. 2 T he District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291.5

defendant cannot meet this burden, the Government does not need to show prejudice. United States v. Martinez , 785 F.2 d 111, 116 (3d Cir. 1986). We hold that the District Court did not abuse its discretion by denying Checo‟s
motion t o withdraw his guilty plea. In support of withdrawal of his guilty plea, Checo
argues that he was misled by the Government that his conspiracy charge would be dr opped if he pled guilty and that he was provided with incorrect information regarding his sent encing guidelines range by his counsel and the Government. These arguments are unfounded and heavily refuted by the record. Additionally, Checo a sserts his innocence in regard t o knowing that Gomez was a drug dealer. This, however, is irrelevant as it

r e lates only to Checo‟s sentencing enhancement and not toward his innocence as to the underlying offenses. In fact, Checo has never maintained that he did not commit the crimes charged or that he could provide any defenses for the offenses

. Hence, w e ag ree with the District Court that Checo failed to assert his innocence a nd that he failed to provide justification for withdrawal of his guilty plea

. Therefore, w e conclude that Checo did not have a “fair and just reason” to justify withdrawal of his guilt y plea.
III. For the foregoing reasons, we will affirm the judgment of the District Court.