Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08 CR 171-William C. Griesbach, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
ARGUED SEPTEMBER 10, 2009
Before MANION, SYKES, and TINDER, Circuit Judges.
Duane Mays entered an unconditional guilty plea to possession of a firearm by a felon. Prior to sentencing, he moved to withdraw his plea, arguing that the possibility of a change in Fourth Amendment law in a case pending before the Supreme Court was a fair and just reason for withdrawal. The district court denied that motion and sentenced Mays to an above-Guidelines-range term of 30 months' imprisonment. Mays appeals the district court's denial of his motion to with-draw and the sentence it imposed. We affirm.
On May 28, 2008, police in Langlade County, Wisconsin, stopped Duane Mays for speeding. The officer making the stop ran a record check and discovered there was an outstanding warrant for Mays's arrest based on an unpaid speeding citation. The officer placed Mays under arrest and searched him, finding $2500 in cash in his pockets. After securing Mays in the back seat of a patrol car, the arresting officer searched Mays's vehicle and found a loaded.380-caliber pistol under a jacket on the front passenger's seat. A drug-detection dog later alerted to Mays's vehicle and the cash he had been carrying, but no controlled substances were found.
Mays was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He entered an unconditional guilty plea on October 9, 2008, pursuant to a plea agreement with the government and following a thorough colloquy with the district court. In the plea agreement, Mays waived several rights, including "any claims he may have raised in any pretrial motion." Prior to sentencing, however, Mays filed a motion to withdraw his guilty plea based on the pending Supreme Court case of Arizona v. Gant, ___ U.S.___, 129 S.Ct. 1710 (2009).*fn1
In that motion, he argued that the possibility a favorable outcome in Gant would render the search of his vehicle unlawful (and the gun thus subject to exclusion) constituted a "fair and just reason" for withdrawing his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B). The district court denied the motion, concluding that Mays's desire to take advantage of a potential change in the Supreme Court's search-incidentto-arrest precedent in Gant did not constitute a fair and just reason for withdrawing his plea.
At sentencing, the district court concluded that Mays possessed the.380-caliber pistol because he was involved in selling drugs. The court based that finding in part on the facts that Mays was carrying $2500 in cash, a drug-detection dog had alerted to his vehicle, and guns are tools of the drug trade commonly used for protection by dealers. The court also relied on several phone calls Mays had placed from jail. According to the presentence investigation report ("PSR"), Mays had been under investigation for dealing drugs in Wisconsin over a year before he was arrested. A confidential informant told law enforcement agents that Mays regularly traveled to Schaumburg, Illinois, to buy cocaine from a man named "Stan." The informant also said that two men named "Steve" and "Bruce" assisted Mays with the drug trafficking. During his detention, Mays placed phone calls to an unidentified man from Schaumburg, Illinois, and men named "Steve" and "Bruce," asking for bail money. In a conversation with the man from Schaumburg, Mays stated: "I got-they caught me with a gun. That's it. They got me with a gun. That's it." The district court under-stood that statement to communicate that Mays had been caught with only a gun, not drugs. The court believed Mays's phone calls corroborated the confidential informant's prior statements that Mays was dealing drugs. Based upon its finding that Mays possessed the gun to protect his drug trafficking activities, the district court sentenced him to 30 months' imprisonment, in excess of the 12-18 month advisory Guidelines range.
Mays appeals, challenging his sentence and the denial of his motion to withdraw his guilty plea.
A. Motion to Withdraw the Guilty Plea
Mays first argues that the district court erred by denying his motion to withdraw his guilty plea. After a court has accepted a guilty plea, a defendant's right to withdraw the plea prior to sentencing is not absolute, United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008); he may withdraw the plea only if he "can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). When a proper Rule 11 colloquy has taken place, a guilty plea enjoys a presumption of verity and the "fair and just" Rule 11(d)(2)(B) escape hatch is narrow. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir. 2003). A defendant's burden of showing the existence of a fair and just reason is heavy in such circumstances. United States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). We review the denial of a defendant's motion to withdraw a guilty plea before sentencing for an abuse of discretion. United States v. Peleti, 576 F.3d 377, 382 (7th Cir. 2009).
We have recognized several fair and just reasons for withdrawing a plea, including: the plea was not made voluntarily and knowingly, United States v. Weathington, 507 F.3d 1068, 1073 (7th Cir. 2007); actual innocence, United States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2006); and legal innocence, United States v. Rinaldi, 461 F.3d 922, 927 (7th Cir. 2006). Mays characterizes his argument-the possibility that a change in Fourth Amendment law in Gant would allow him to ...