NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

C a se No: 05-4736

U N I T E D STATES OF AMERICA

v. G A R Y KENNETH WILDER, JR.,

Appellant

O n Appeal from the United States District Court

f o r the Western District of Pennsylvania

D is tric t Court No.: 03-CR-72-13

D istric t Judge: The Honorable Joy Flowers Conti

S u b m itte d Pursuant to Third Circuit L.A.R. 34.1(a)

O c to b e r 24, 2006

B e f o re : SMITH, FISHER, and COWEN, Circuit Judges

(F ile d : October 25, 2006)

O P IN IO N

S M IT H , Circuit Judge: On November 4, 2003, Gary Wilder pled guilty to two counts of a multi-count in d ic tm e n t charging him with possession with intent to distribute 100 grams or more of h e ro in and carrying a firearm in connection with a drug trafficking offense, pursuant to 21 U .S .C . §§ 841(a)(1), 841(b)(1)(B)(i), and 846. On January 23, 2004, Wilder filed a m o tio n to withdraw his guilty pleas on the grounds that they were not knowingly and in te llig e n tly made because his counsel had incorrectly advised him that he would not be d e sig n a te d as a career offender. He claimed that he would not have entered the pleas had h e known that he would so qualify.

After conducting a hearing on the defendant's motion, United States District Judge J o y Conti denied Wilder's motion to withdraw his guilty plea. Judge Conti applied the th re e factor test laid out by this court in United States v. Jones, 336 F.3d 245 (3d Cir. 2 0 0 3 ), and determined that Wilder's claim failed as to the first prong because he did not m e a n in g f u lly assert his innocence. See id. at 252. On the basis of this failure, the District C o u rt ruled that Wilder was precluded from withdrawing his pleas. The District Court rea ch ed this decision on the basis of its mistaken understanding that the three factors were m an d atory. Wilder filed a timely appeal to this court. We explained that the three factors w e re not mandatory, and remanded the case for further consideration of the motion to w ith d ra w .

Upon remand, the District Court considered each of the three Jones factors, and c o n c lu d e d that, on balance, Wilder had not demonstrated a fair and just reason for w ith d ra w in g his pleas. In particular, the Court concluded that the assertion of innocence f a cto r was "compelling and weigh[ed] heavily in the balancing of the factors with respect to withdrawal of defendant's guilty plea because the strength of the evidence concerning d e f en d a n t's guilt was strong ... and defendant failed to make any meaningful showing that h e was innocent." The District Court sentenced Wilder to a term of 236 months. Wilder tim e ly filed this appeal.1 O u r review of the District Court's denial of the defendant's motion to withdraw his g u ilty plea is for an abuse of discretion. See Jones, 336 F.3d at 252; United States v. H a rr is, 44 F.3d 1206, 1210 (3d Cir. 1995). As explained in both Federal Rule of Criminal P r o c e d u re 11(d) and United States v. Jones, a defendant must have a "fair and just reason f o r requesting the withdrawal." FED. R. CRIM. P. 11(d); Jones, 336 F.3d at 252. The three f a cto rs that must be considered in evaluating a motion to withdraw the guilty plea are: "(1 ) whether the defendant asserts his innocence; (2) the strength of the defendant's re a so n s for withdrawing the plea; and (3) whether the government would be prejudiced by th e withdrawal." Jones, 336 F.3d at 252; United States v. Jones, 979 F.2d 317, 318 (3d C ir. 1992); United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989).

As to the first factor, the defendant's assertion of innocence must be accompanied b y some facts to support the claimed defense, and the defendant must supply sufficient re a s o n s to explain the contradictory positions taken before the District Court. United S ta te s v. Brown, 250 F.3d 811, 818 (3d Cir. 2001). A bald assertion of innocence is p a te n tly insufficient to meet this requirement. Jones, 336 F.3d at 252. Although Wilder d id present evidence from his prior attorney to the effect that "[h]is case really wasn't that 1 The District Court had jurisdiction pursuant to 18U.S.C. § 3231. We exercise a p p e lla te jurisdiction under 28U.S.C. § 1291. b a d ," and that the attorney would not have advised him to plead if he had known that W ild e r would be classified as a career offender, Wilder did not offer any evidence beyond h is own statements to show that he was innocent of the charges. The mere allegation that h e waived his constitutional rights based entirely on his prior counsel's advice is not e n o u g h to explain why his position changed so drastically. Jones, 336 F.3d at 253.

With respect to the second factor, Wilder asserts that a compelling reason for w ith d ra w a l of his guilty plea is that his Sixth Amendment right to effective counsel was v io la te d . The two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), a p p lie s to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. L o c k h a r t, 474 U.S. 52, 58 (1985); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).

T h u s , in order to prevail, Wilder must show that his attorney's conduct fell below an o b je c tiv e standard of reasonable competence under prevailing norms, and that there is a re a so n a b le probability that, but for the error, the outcome in his case would have been d if f e re n t. Strickland, 466 U.S. at 687-88, 694. Wilder has not met this standard. As e x p lain e d in Hill v. Lockhart, "in order to satisfy the `prejudice' requirement, the d e f e n d a n t must show that there is a reasonable probability that, but for counsel's errors, h e would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U .S . at 59.

Wilder presented no evidence apart from his attorney's assertion that his case was n o t "that bad" to demonstrate a reasonable probability that he would have gone to trial h a d he been provided with accurate information regarding his career offender status. This lo n e assertion is insufficient to establish prejudice. See Parry v. Rosemeyer, 64 F.3d 110, 1 1 8 (3d Cir. 1995) ("A defendant alleging ineffective assistance of counsel in the guilty p lea context must make more than a bare allegation that but for counsel's error he would h a v e pleaded not guilty and gone to trial."); see also United States v. Kauffman, 109 F.3d 1 8 6 , 191 (3d Cir. 1997) (defendant needs to present evidence "sufficient to undermine our c o n f id e n c e that [the attorney] would have advised his client to plead guilty rather than p ro c e e d to trial and that [the defendant] would have accepted that advice").

Moreover, this court has held that where the record is "replete with evidence of p e titio n e r's guilt," he is unable to show that there is a reasonable probability that but for h is counsel's errors the result of the proceeding would have been different. United States v . Nino, 878 F.2d 101, 105 (3d Cir. 1989). The evidence proffered by the government at W ild e r's guilty plea was that during a drug conspiracy investigation, agents intercepted n u m e r o u s calls between Wilder and his coconspirator regarding heroin transactions, co n firm ed the completion of a deal between the two, and conducted a stop of Wilder's v e h ic le shortly thereafter. The vehicle stop uncovered 125 bricks of heroin and a 9mm s e m i-a u to m a tic handgun. Wilder later admitted to police that his coconspirator had given h im both the drugs and the gun, for which he was indebted to his coconspirator for $ 4 ,5 0 0 . He also stated that he had previously obtained additional bricks of heroin from th e same coconspirator. Wilder clearly exercised control over both the heroin and the f ire a rm , and he has not articulated a defense beyond his own assertions of innocence.

T h u s, we conclude that Wilder has failed to show a reasonable probability that but for his c o u n s e l's errors, the outcome of the proceeding would have been different. Id.

The third factor is not contested in this case. The government conceded at oral a rg u m e n t before the District Court that it was not asserting prejudice.

The District Court carefully considered and balanced each of the three Jones f a cto rs for withdrawal of a guilty plea. Based on the evidence presented at the withdrawal m o tio n hearing and the relevant case law, it is clear that Wilder failed to present a fair and ju st reason to withdraw his pleas, and the District Court did not abuse its discretion in d e n yin g the motion. For the foregoing reasons, we will affirm the judgment of the District C o u rt.