Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-CR-203-Charles N. Clevert, Jr., Judge.
Before COFFEY, RIPPLE, and KANNE, Circuit Judges, COFFEY, Circuit Judge.
Reginald Chavers pleaded guilty to knowingly attempting to bring a loaded semi-automatic pistol on an airplane. Two months later, he moved to withdraw his plea, claiming he did not know the gun was loaded when he gave it to airport officials.
The district court disagreed and denied the motion. We affirm.
In May 2004 Chavers was arrested at Milwaukee County's General Billy Mitchell International Airport, where he was checking in for a flight to Atlanta. He told airline staff that he needed to declare a weapon without any ammunition. The airline's customer-service representative, Carrie Jackson, asked Chavers to sign an Unloaded Firearm Declaration. Chavers complied and placed the signed declaration inside his gun case. Jackson asked Chavers again whether he had any ammunition, and Chavers responded "no." Jackson next told Chavers that he needed to buy a lock for his gun case before he could check the case. Chavers complained that the Transportation Security Administration (TSA) screeners were always breaking the locks on his gun case, but he purchased a lock from the airport concessionaire nonetheless. Chavers then gave his gun case to the TSA screeners, who after examining the case discovered that the gun was loaded with 10 rounds of ammunition and that the case also contained an extra magazine with another 10 rounds. When confronted with this information, Chavers claimed-falsely-that he was a law enforcement officer and was entitled to carry the loaded weapon on board.
Thereafter, Chavers was charged in a two-count indictment with knowingly attempting to place a loaded firearm in checked luggage. 49 U.S.C. § 46505(b)(2). He was also charged with knowingly and willfully making a false representation to airport personnel regarding the firearm. 18 U.S.C. § 1001. He agreed to plead guilty to the firearm charge in exchange for the government's promise to dismiss the false representation charge.
During the plea colloquy, Chavers testified that he wanted to plead guilty because he was, in fact, guilty as charged. He also testified that he agreed with the factual basis for his plea as described in the plea agreement. Furthermore, Chavers testified that he had an adequate opportunity to discuss the charges and any defenses he might have with his appointed counsel, that counsel had accommodated all of his requests, and that he was fully satisfied with counsel's representation. After informing Chavers that his criminal conviction would affect his civil rights, including his ability to own a gun and his ability to obtain a license for certain kinds of employment, the trial judge accepted the guilty plea. The district court did not explicitly ask Chavers if he knew the gun was loaded when he gave it to the TSA screeners.
Almost two months later, Chavers wrote a letter to the court asking to withdraw his guilty plea and have new counsel appointed. In his letter, he asserted that he was innocent and blamed his decision to plead guilty on his attorney, who he now claimed was ineffective. He maintained that his lawyer failed to locate a crucial witness, neglected to postpone the trial date in consideration of Chavers's health problems, and told Chavers that he was not prepared to try the case.
In response to Chavers's letter, the district court appointed new counsel. Chavers's new counsel filed a formal motion to withdraw the guilty plea, arguing that Chavers did not know the gun was loaded when he gave it to the TSA officials and that no one told Chavers his felony conviction would bar him from gun ownership or operating a security business. The district court denied Chavers's motion to withdraw the guilty plea and sentenced Chavers to 5 years' probation. Chavers appeals, challenging only the district court's denial of his motion to withdraw his plea.
Chavers makes two arguments in support of his contention that the district court erred in denying his motion to withdraw his guilty plea. Initially, he claims that he did not know the gun was loaded when he gave it to airport personnel, thus undermining the factual basis of his guilty plea. Second, he argues that the district court applied the wrong legal standard in evaluating his motion to withdraw.
We have frequently observed that "[a] defendant does not have an absolute right to withdraw a plea before sentencing, although the court may allow him to do so if he has a 'fair and just reason' for doing so." United States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005) (quoting Fed. R. Crim. P. 11(d)(2)(B)). Because the defendant's statements at the plea colloquy are presumed to be true, the defendant bears a heavy burden of persuasion in showing that such a fair and just reason exists. United States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001). A defendant faces an uphill battle in seeking to withdraw a guilty plea after a thorough plea colloquy. United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). We will uphold a district court's factual findings about the existence of a fair or just reason to withdraw the plea unless they are clearly erroneous, and we review the district court's ruling on the motion to withdraw for abuse of discretion. Carroll, 412 F.3d at 792.
Chavers argues that he did not know the gun was loaded when he handed it to airport personnel and that the district court consequently erred in finding a sufficient factual basis for his plea. In essence, Chavers claims that because knowing the gun was loaded is a necessary element of the crime to which he pleaded guilty, and because he did not in fact possess the requisite knowledge, he is actually innocent of the crime. We have frequently held that actual innocence is a valid ground for withdrawing a guilty plea. See, e.g., Carroll, 412 F.3d at 792. But "bare protestations of innocence" are insufficient to withdraw a guilty plea, ...