United States v. Rice, 10th Cir. (2009)
United States v. Rice, 10th Cir. (2009)
TENTH CIRCUIT
No. 08-6036
(W.D. Oklahoma)
MARK D. RICE,
Defendant - Appellant.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Commission, Guidelines Manual (USSG). United States v. Rice, 358 F.3d 1268
(10th Cir. 2004) (Rice I). The Supreme Court summarily reversed and
remanded our decision for further consideration in light of United States v.
Booker, 543 U.S. 220 (2005). See Rice v. United States, 543 U.S. 1103 (2005)
(Rice II). We accordingly remanded the case to the district court for
resentencing.
Following that remand for resentencing, on May 26, 2006, Rice filed a
motion to withdraw his guilty plea. After additional motions were filed by Rice
and by the government, an evidentiary hearing was held on four days in August
and September 2007. The district court denied Rices motion to withdraw his
guilty plea and resentenced Rice to the same previous term of imprisonment of
262 months. We affirm the denial of the motion to withdraw and we once again
affirm the sentence in this case.
BACKGROUND
The facts relating to Rices crime, conviction and previous sentence are
fully set forth in our decision in Rice I. Rice, 358 F.3d at 1271-73. We do not go
into them in detail here, other than as necessary for this opinion.
-2-
rejecting Rices motion to withdraw his guilty plea, we emphasize a few salient
factors.
First, Rice purports to assert both his legal and factual innocence to the
charges presented. Appellants Op. Br. at 18. As the district court found, Rice
purports to have asserted his innocence, but he has done so only in the most
highly technical sense. Whether his assertion of innocence be viewed as a legal
assertion or a factual assertion, his assertion of innocence is wholly implausible
and would, in any event, be futile. Tr. of Mot. to Withdraw Guilty Pleas, R. Vol.
5 at 547.
Rice argues that there were numerous allegedly exculpatory documents that
were never disclosed to him or his defense counsel, and he argues that a videotape
that formed the basis of at least one of the counts of conviction 1 was altered.
However, he never identified, either before the district court or at oral argument
in this appeal, what documents or evidence would have made any difference
before the district court, either at the point that he entered his guilty pleas or at
his sentencing. He suggests that a forensic investigation of computer drives and
videotapes would have demonstrated his factual innocence. However, Rice
identifies nothing specific that would have altered the situation at the time of his
guilty plea. Indeed, his counsel conceded at the evidentiary hearing on Rices
motion to withdraw his guilty plea that the section of the videotape depicting Rice
masturbating with a young girl in his presence was not edited or altered in any
way. Rices assertion of innocence is, indeed, merely technical and is based
entirely on conjecture. 2 We wholeheartedly agree with the district court that
Rices assertion of innocence leaves [us] entirely unpersuaded that the defendant
would have made any different choices in 2001 and 2002 if he and his counsel
had all of the facts that they now have. Id.
The district court considered other Yazzie factors to be either essentially
neutral or modestly favoring either Rice or the government. 3 The district court
carefully considered whether Rice had been provided with close and effective
assistance of counsel: The answer is absolutely. He did have close assistance of
counsel. One of the most competent sex offense lawyers in the State of
2
Oklahoma is [Rices trial counsel] J.W. Coyle. If J.W. Coyle had known in 2001
and 2002 as much about computer technology as did the technical witnesses who
testified at the hearing in this case earlier this summer, the result would not have
changed at all. Id. at 548. 4 Additionally, the district court found that Rices
plea of guilty was knowing and voluntary: I have found that [Rice] was alert,
that he grasped the realities of the situation, he understood what was going on, he
understood that he had no viable alternative to a conditional plea. His conditional
plea was the best he could make of a situation, which, from his perspective, was
an untenable situation legally and factually. Id. at 549. The district court
accordingly denied Rices motion to withdraw his guilty plea. As the above
analysis and explanation make clear, the district court did not abuse its discretion
in denying Rices motion to withdraw his guilty plea.
Rice suggests that there was confusion, and perhaps inaccuracy, in the
description conveyed to police of what was actually discovered on the school
computer by means of Rices America OnLine account. He further suggests that
this may have occurred because his attorney, Coyle, as well as the initial
investigating officer and/or the school official who first discovered apparently
pornographic materials on a school computer Rice had used, lacked sophistication
in computer science. See Mot. for Leave to Withdraw Conditional Pleas of Guilty
at 8 (Mr. Rice asserts his decision to enter conditional pleas of guilty was based
on counsels assessment of the legal defenses available to him. Counsels
assessment was based, in turn, on an incomplete understanding of the technology
that formed the predicate for the search warrant.).
We found in Rice I that the district court properly denied Rices motion to
suppress the materials seized for essentially this same reason (misunderstanding
as to the workings of computers). We reject Rices effort to somehow call into
question the propriety of that ruling.
-6-
-8-
The December 3, 2007, order notified the parties that the court was
considering an upward departure from the advisory Guidelines range, in view of
the 3553(a) factors, the district courts comments at Rices original 2002
sentencing, the revised presentence report, the courts comments made at a
September 7, 2007, hearing, and the materials submitted in connection with
Rices motion to withdraw his guilty pleas.
-9-
-10-
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-11-