`United States Court of Appeals
`Tenth Circuit
`June 2, 2021
`Christopher M. Wolpert
`Clerk of Court
`UNITED STATES COURT OF APPEALS
`
`PUBLISH
`
`TENTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`
`Plaintiff - Appellee,
`
`v.
`
`Nos. 19-8021 & 19-8022
`
`CHRISTOPHER DOMINGUEZ,
`
`Defendant - Appellant.
`
`Appeals from the United States District Court
`for the District of Wyoming
`(D.C. No. 2:18-CR-00186-NDF-1)
`(D.C. No. 2:17-CR-00098-NDF-3)
`
`Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal
`Public Defender, with him on the briefs), Office of the Federal Public Defender,
`Denver, Colorado, for Defendant-Appellant.
`
`Stuart S. Healy, III, Assistant United States Attorney (L. Robert Murray, Acting
`United States Attorney, with him on the brief), Office of the United States
`Attorney, District of Wyoming, Cheyenne, Wyoming, for Plaintiff-Appellee.
`
`Before HOLMES, Circuit Judge, LUCERO, Senior Circuit Judge, and EID,
`Circuit Judge.
`
`HOLMES, Circuit Judge.
`
`
`
`Christopher Dominguez appeals from the district court’s denial of his
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`motion to withdraw his guilty plea. He contends that his plea is invalid for two
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`reasons: first, he did not knowingly and intelligently plead guilty, and second, he
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`did not receive the requisite “close assistance” of counsel in making his plea.
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`Based on these contentions, he asks that we reverse the district court’s decision
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`and remand with instructions to vacate his plea. We decline to do so. Despite his
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`arguments to the contrary, Mr. Dominguez does not convince us that he
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`unknowingly and unintelligently pleaded guilty or that he did not receive “close
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`assistance” of counsel. Accordingly, exercising jurisdiction under 28 U.S.C.
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`§ 1291, we affirm the district court’s judgment.
`
`I
`
`This case arises from Mr. Dominguez’s involvement in a series of robberies
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`in New Mexico and Wyoming. On December 3, 2016, Mr. Dominguez was
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`arrested along with two other suspects, Antoine Mitchell and Moses D. Dickens
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`III, for the armed robbery on that same day of the Medicine Shoppe Pharmacy in
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`Raton, New Mexico. There were a number of salient features of the robbery. The
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`robbery was committed by only three men. Prior to the robbery, the robbers had
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`stolen a vehicle, which they used during the robbery and abandoned thereafter.
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`During the robbery, the robbers wore face coverings, displayed firearms, and
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`ordered the pharmacy employees to load certain drugs into black trash bags that
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`the robbers supplied. The robbers identified the requested drugs by name,
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`2
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`
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`specifically mentioning “Oxy 30,” by which they apparently meant Oxycontin and
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`Oxycodone.
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`After Mr. Dominguez and his cohorts were arrested, the Raton Police
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`Department posted information concerning the robbery, including photos, on the
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`Department’s Facebook page. This post drew the attention of a pharmacist who
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`had been shot during a robbery of the Medicap Pharmacy in Cheyenne, Wyoming,
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`on October 6, 2016. The salient features of that robbery closely resembled those
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`of the Raton, New Mexico, robbery. However, notably, the robbers in the
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`Wyoming robbery of the Medicap Pharmacy obtained the stolen vehicle used in
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`the robbery by carjacking a female victim. Moreover, not only did they display
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`their firearms, they also engaged in a gun battle with the pharmacist before
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`fleeing the scene.
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`After seeing the Raton Police Department Facebook information, the
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`Medicap pharmacist alerted law enforcement, which began investigating whether
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`the suspects in the New Mexico robbery had also committed the prior Wyoming
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`robbery. Law enforcement would eventually directly connect Messrs. Mitchell
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`and Dickens to the Wyoming robbery through DNA uncovered in the carjacking
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`victim’s stolen vehicle and through that victim’s eyewitness identifications of the
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`two men. Furthermore, one of the firearms that law enforcement seized from a
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`vehicle involved in the New Mexico robbery was forensically shown to have fired
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`shells recovered at the scene of the Wyoming robbery. Though Mr. Dominguez
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`3
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`
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`was arrested with Messrs. Mitchell and Dickens after the New Mexico robbery,
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`there was no evidence directly connecting him to the Wyoming robbery.
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`However, law enforcement made note that the vehicle in the driveway of Mr.
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`Dominguez’s girlfriend matched the description of the vehicle that the Wyoming
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`robbers used during the victim’s carjacking and to flee the robbery scene.
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`Federal grand juries in New Mexico and Wyoming returned multi-count
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`indictments charging Mr. Dominguez and the other two men with various crimes
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`related to these robberies.1 Mr. Dominguez pleaded not guilty to all charges.
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`Mr. Dominguez was charged with the following crimes relating to the
`1
`New Mexico robbery: Count 1—Hobbs Act Robbery, in violation of 18 U.S.C.
`§ 1951(a); Count 2—Brandishing a Firearm in Furtherance of a Crime of Violence
`and a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c); Count
`3—Robbery Involving Controlled Substances and Aiding and Abetting, in
`violation of 18 U.S.C. §§ 2, 2118(a)(1), (c)(1); Count 4—Theft of Medical
`Products and Aiding and Abetting, in violation of 18 U.S.C. §§ 2, 670(a)(1),
`(b)(2)(A)–(B); Count 5—Possession with Intent to Distribute Oxycodone and
`Aiding and Abetting, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1),
`(b)(1)(C); and Count 8—Felon in Possession of a Firearm, in violation of 18
`U.S.C. §§ 922(g)(1) and 924(a)(2). See R., Vol. II, at 18–23 (N.M. Indictment,
`filed Dec. 20, 2016). In relation to the Wyoming robbery, Mr. Dominguez was
`indicted on the following charges: Count 1—Conspiracy to Commit Carjacking,
`in violation of 18 U.S.C. § 371; Count 2—Carjacking and Aiding and Abetting, in
`violation of 18 U.S.C. §§ 2, 2119; Counts 3 and 4—Using, Carrying, and
`Discharging a Firearm During and in Relation to a Crime of Violence and Aiding
`and Abetting, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii); Count
`5—Attempted Robbery Involving Controlled Substances and Aiding and Abetting,
`in violation of 18 U.S.C. §§ 2, 2118(a)(1)(3)(c)(1); Count 6—Hobbs Act Robbery,
`in violation of 18 U.S.C. § 1951; and Counts 7 and 8—Using, Carrying, and
`Discharging a Firearm During and in Relation to a Crime of Violence, in violation
`of 18 U.S.C. § 924(c)(1)(A)(iii). See id., Vol. I, at 15–23 (Wyo. Indictment, filed
`May 19, 2017). Counts 3 and 8 of the Wyoming Indictment were dismissed prior
`to Mr. Dominguez’s change of plea.
`
`4
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`
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`Among Mr. Dominguez’s charges were three separate violations of 18
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`U.S.C. § 924(c)—one in relation to the New Mexico robbery, and two in relation
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` to the Wyoming robbery. Under § 924(c),
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`any person who, during and in relation to any crime of violence
`or drug trafficking crime . . . uses or carries a firearm, or who, in
`furtherance of any such crime, possesses a firearm, shall, in
`addition to the punishment provided for such crime of violence
`or drug trafficking crime—(i) be sentenced to a term of
`imprisonment of not less than 5 years; (ii) if the firearm is
`brandished, be sentenced to a term of imprisonment of not less
`than 7 years; and (iii) if the firearm is discharged, be sentenced
`to a term of imprisonment of not less than 10 years.
`
`18 U.S.C. § 924(c)(1)(A). Notably, as to the New Mexico robbery, Mr.
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`Dominguez’s only § 924(c) charge alleged that he brandished a firearm and thus
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`invoked the seven-year mandatory minimum sentence; and, as to the Wyoming
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`robbery, his two § 924(c) charges each averred that Mr. Dominguez discharged a
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`firearm, which invoked the ten-year mandatory minimum sentence.
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`Section 924(c) requires that each term of imprisonment for a violation of
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`the statute run consecutively to each of a defendant’s other terms of
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`imprisonment. See id. § 924(c)(1)(D)(ii) (“[N]o term of imprisonment imposed
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`on a person under [§ 924(c)] shall run concurrently with any other term of
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`imprisonment imposed on the person, including any term of imprisonment
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`imposed for the crime of violence or drug trafficking crime during which the
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`firearm was used, carried, or possessed.”). Additionally, at the time Mr.
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`Dominguez was charged, § 924(c) contained a “stacking provision,” which
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`5
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`
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`mandated mandatory minimum sentences of twenty-five years for second or
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`subsequent § 924(c) violations. See id. § 924(c)(1)(C) (2006) (“In the case of a
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`second or subsequent conviction under [§ 924(c)], the person shall . . . be
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`sentenced to a term of imprisonment of not less than 25 years . . . .”), amended by
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`First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194 (Dec. 21,
`
`2018). Consequently, under the version of § 924(c) in effect when he was
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`indicted, Mr. Dominguez faced a mandatory minimum sentence of sixty years if
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`convicted on all three § 924(c) violations with which he was charged.
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`Against this backdrop the parties began plea negotiations in November
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`2018. By mid-December, the parties reached an agreement, which was reduced to
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`writing and signed by Mr. Dominguez on December 20, 2018. Under the
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`agreement’s terms, Mr. Dominguez would plead guilty to three counts from the
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`Wyoming indictment—including one § 924(c) violation—and one count from the
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`New Mexico indictment. Mr. Dominguez would also waive his right to appeal his
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`convictions and sentences.2 In exchange, the government would dismiss the
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`While Mr. Dominguez “knowingly and voluntarily waive[d] any right
`2
`to appeal any matter in connection with . . . his conviction[] or the components of
`the sentence to be imposed” as a part of his plea agreement, R., Vol. III, at 20
`(Plea Agreement, filed Dec. 20, 2018), this waiver “is [itself] waived when the
`government utterly neglects to invoke [it] in this court,” United States v.
`Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006) (quoting United States v.
`Calderon, 428 F.3d 928, 930–31 (10th Cir. 2005)); see also United States v.
`Clark, 415 F.3d 1234, 1237 n.1 (10th Cir. 2005) (declining to enforce a
`defendant’s waiver of her appeal rights in her plea agreement where the
`government did not “argue[] in its brief that we should dismiss [the] appeal on the
`(continued...)
`
`6
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`
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`remaining charges against him, including the two additional § 924(c) violations
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`with which he was charged—thereby resolving both the New Mexico and
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`Wyoming cases. Further, the government agreed not to charge Mr. Dominguez
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`with any conduct for which he was being investigated related to a bank robbery
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`that occurred in 2015 in Albuquerque, New Mexico.
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`For the four charges to which he would plead guilty, the parties agreed in
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`the written plea agreement, pursuant to Federal Rule of Criminal Procedure
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`11(c)(1)(C), that Mr. Dominguez would serve a total of twenty-eight years’
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`imprisonment. Specifically, with respect to the Wyoming charges, Mr.
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`Dominguez agreed to serve eight years for Count 2, Carjacking and Aiding and
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`Abetting, in violation of 18 U.S.C. §§ 2, 2119; ten years for Count 5, Attempted
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`Robbery Involving Controlled Substances and Aiding and Abetting, in violation
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`of 18 U.S.C. §§ 2, 2118(a)(1)(3)(c)(1); and ten years for Count 7, Using,
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`Carrying, and Discharging a Firearm During and in Relation to a Crime of
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`Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)—all to run consecutively.
`
`As well, with respect to the New Mexico case, Mr. Dominguez agreed to serve an
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`eighteen-year sentence for Count 1, Hobbs Act Robbery, in violation of 18 U.S.C.
`
`2(...continued)
`basis of [the defendant’s] appellate rights waiver”). Accordingly, because the
`government neither invokes nor attempts to enforce the appellate waiver provision
`in Mr. Dominguez’s plea agreement, the government has effectively waived the
`waiver, and we therefore have no need to address that provision further and
`proceed to resolve the issues that this appeal presents.
`
`7
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`
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`§ 1951(a), which would run concurrently with his sentences for the Wyoming
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`charges.
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`Notably, in the plea agreement, Mr. Dominguez averred at numerous points
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`that he understood the nature of the charges against him, what his sentences
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`would be, and that he entered into the agreement’s terms knowingly and
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`voluntarily. See R., Vol. III, at 15–16 (Plea Agreement, filed Dec. 20, 2018)
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`(stating that Mr. Dominguez “understands,” inter alia, the minimum and
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`maximum sentences associated with the charges to which he was pleading guilty);
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`id. at 17 (stating that he “understands that by entering this agreement and
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`pleading guilty he waives certain rights”); id. (acknowledging that “he
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`understands the nature and elements of the offenses he is pleading guilty to”); see
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`also id. (“The Defendant acknowledges he is entering this agreement and pleading
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`guilty freely and voluntarily because he is, in fact, guilty.”).
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`On December 21, 2018, Mr. Dominguez appeared in district court for his
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`change-of-plea hearing.3 During a thorough Rule 11 colloquy conducted by the
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`Mr. Dominguez’s New Mexico case was transferred to the United
`3
`States District Court for the District of Wyoming as part of Mr. Dominguez’s plea
`agreement, and pursuant to Federal Rule of Criminal Procedure 20. See R., Vol.
`III, at 16 (“Defendant has knowingly, voluntarily, and intelligently consented to
`transfer the disposition of his New Mexico-based federal case to [the District of
`Wyoming].”); id., Vol. V, at 54 (Tr. Change of Plea Hr’g, dated Dec. 21, 2018)
`(noting that Mr. Dominguez’s New Mexico case was “transferred to the District
`of Wyoming through the consent of the United States Attorney in New Mexico
`and the United States Attorney in Wyoming”); see also FED. R. CRIM. P. 20(a)
`(“A prosecution may be transferred from the district where the indictment . . . is
`(continued...)
`
`8
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`
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`court, Mr. Dominguez, under oath, represented (among other things) that he (1)
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`was “fully satisfied with the advice and representation [he had] received . . . from
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`[his] attorney”; (2) understood his plea agreement’s terms and discussed them
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`with his counsel; (3) signed the agreement voluntarily, and suffered no threats or
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`coercion; and (4) understood the myriad consequences of pleading guilty,
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`including the loss of certain fundamental rights. See id., Vol. V, at 58–69 (Tr.
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`Change of Plea Hr’g, dated Dec. 21, 2018). He also provided a factual basis for,
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`and affirmatively pleaded guilty to, each of the four charges covered by the plea
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`agreement. Following the colloquy, the district court conditionally accepted the
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`plea agreement, finding that Mr. Dominguez was “fully competent and capable of
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`entering an informed plea,” “aware of the nature of the charges” against him, and
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`“aware of the consequences of a plea of guilty to each of those four charges,” and
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`also finding “that his pleas of guilty [were] knowing and voluntary pleas,
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`supported by an independent basis of fact sufficient to satisfy all the essential
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`elements of the four offenses to which [he] . . . pled.” Id. at 82.
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`But unbeknownst to the parties, the law changed the day of the hearing.
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`Specifically, on December 21, 2018, the President signed into law the First Step
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`3(...continued)
`pending, . . . to the district where the defendant is . . . present if: (1) the defendant
`states in writing a wish to plead guilty . . . and to waive trial in the district where
`the indictment . . . is pending, consents in writing to the court’s disposing of the
`case in the transferee district, and files the statement in the transferee district; and
`(2) the United States attorneys in both districts approve the transfer in writing.”).
`
`9
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`
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`Act, a wide-ranging package of criminal justice reform measures that had passed
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`both houses of Congress only days prior.4 Of note, the First Step Act altered the
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`“stacking” provision of § 924(c); now, subsequent to the Act, the twenty-five-year
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`mandatory minimum provision applies only to “violation[s] of [§ 924(c)] that
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`occur[] after a prior [§ 924(c)] conviction . . . has become final,” 18 U.S.C.
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`§ 924(c)(1)(C) (2018) (emphasis added), rather than applying to any “second or
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`subsequent [§ 924(c)] conviction,” as it had previously, id. § 924(c)(1)(C) (2006).
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`This statutory change had significant implications for Mr. Dominguez’s
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`potential sentencing exposure: whereas before the First Step Act, he faced a
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`sixty-year mandatory minimum sentence were he to be convicted on all three
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`§ 924(c) charges brought in the New Mexico and Wyoming indictments, after the
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`First Step Act, conviction on all these charges would bring only a mandatory
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`minimum sentence of twenty-seven years. See id. § 924(c)(1)(A), (D)(ii) (noting
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`The parties debate at what precise moment the First Step Act became
`4
`the law—i.e., whether it was signed hours before or hours after Mr. Dominguez’s
`change-of-plea hearing on December 21, 2018—but it is undisputed that the Act
`was signed into law on the same day as the hearing. At oral argument, Mr.
`Dominguez’s counsel acknowledged that the precise timing was immaterial to Mr.
`Dominguez’s claims because the relevant law would have been changed by the
`First Step Act by the time Mr. Dominguez went to trial. See Oral Arg. at
`5:35–6:23 (The court: “Does it matter for your purposes whether in fact the First
`Step Act went into effect before pronouncement of sentence or after?”
`Appellant’s counsel: “It isn’t material to the outcome of this case [because] Mr.
`Dominguez’s trial was set for January 7, 2019, [after the First Step Act’s effective
`date].”). Ultimately, consistent with the acknowledgment of Mr. Dominguez’s
`counsel, we conclude that we need not consider this timing issue further because
`it is immaterial to our resolution of this appeal.
`
`10
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`
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`that a defendant shall be sentenced to a seven-year mandatory minimum if he
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`“brandishe[s]” a firearm during the commission of a qualifying crime, and a
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`ten-year mandatory minimum if he “discharge[s]” a firearm during such
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`commission, and that such sentences shall run consecutively); see also Pub. L.
`
`No. 115-391, § 403(b), 132 Stat. at 5222 (noting that this amendment “shall apply
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`to any offense that was committed before the date of enactment of this Act, if a
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`sentence for the offense has not been imposed as of such date of enactment”). In
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`Mr. Dominguez’s estimation, “the First Step Act significantly undercut the
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`government’s bargaining power to convince [him] to plead guilty.” Aplt.’s
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`Opening Br. at 8–9.
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`In light of this purported shift in the parties’ bargaining positions, Mr.
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`Dominguez moved to withdraw his guilty plea on February 4, 2019. The district
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`court held a hearing on the motion a few weeks later. At that hearing, Mr.
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`Dominguez’s counsel acknowledged that, at the time the parties were negotiating
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`the plea agreement, and “up until the day that [Mr. Dominguez] actually pled
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`guilty,” the law “was that you [c]ould stack 924(c)s.” R., Vol. V, at 92 (Tr. Hr’g
`
`on Def.’s Mot. to Withdraw Guilty Plea, dated Feb. 26, 2019); see id. at 95 (Mr.
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`Dominguez’s counsel noting that “[t]he law at the time . . . [the parties]
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`negotiated the plea agreement said [the government] c[ould] stack the 924(c)s”).
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`Nonetheless, Mr. Dominguez contended that he should be permitted to
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`withdraw his plea because he had not made the plea knowingly and intelligently
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`11
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`
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`and because he had not received “close assistance” of counsel. As to whether his
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`plea was knowing and intelligent, Mr. Dominguez’s counsel noted that the
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`evidence against his client in the New Mexico case was “substantial,” and that
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`“there was no doubt in [his] mind . . . that Mr. Dominguez was likely to be
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`convicted” on the New Mexico charges. Id. at 92–93. Given this virtual
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`certainty, Mr. Dominguez was concerned that, should he also be convicted on the
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`Wyoming charges, he would face a decades-long mandatory minimum sentence,
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`pursuant to the pre-First Step Act version of § 924(c)(1)(C). Yet, he reasoned
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`that, once § 924(c)(1)(C)’s stacking provision was no longer in the picture—due
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`to the First Step Act becoming law—the potential consequences of any New
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`Mexico convictions were substantially less severe. More specifically, following
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`the First Step Act, Mr. Dominguez faced only a minimum sentence roughly half
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`the length of what he faced prior to the Act’s passage, even if he was convicted
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`on all of the § 924(c) charges.
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`Based on this material change that he was not aware of at the time of his
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`guilty plea, Mr. Dominguez maintained his guilty plea was not made knowingly
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`and intelligently. See id. at 107–08 (Mr. Dominguez’s counsel defining
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`“knowing” as, inter alia, “understanding the entire legal structure that gives [a
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`defendant] confidence that [he is] standing [before the court] making an
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`intelligent decision [in pleading guilty],” and arguing that, if “knowing” is
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`defined in this way, “then [Mr. Dominguez’s plea] wasn’t a knowing plea”). And,
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`12
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`
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`as to whether Mr. Dominguez received the requisite “close assistance” of counsel,
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`his attorney argued his failure to recognize the potential impact of the First Step
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`Act on Mr. Dominguez’s sentencing exposure fell below professional standards.
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`See id. at 103 (Mr. Dominguez’s counsel expressing his “belie[f] that [he] should
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`have . . . recognized that there was an existing law . . . likely to be signed . . . the
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`same day that Mr. Dominguez [was] changing his plea . . . and figured out
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`whether or not that affected Mr. Dominguez’s substantial rights and whether it
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`would have affected his ability to change his plea”); id. at 106 (“Had I [Mr.
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`Dominguez’s counsel] read the First Step Act and understood what the stacking
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`provisions meant, [Mr. Dominguez] wouldn’t have changed his plea.”).
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`Accordingly, Mr. Dominguez argued that his motion to withdraw was justified
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`and should be granted.
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`However, the district court disagreed and denied the motion. As is germane
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`to this appeal, the district court rejected Mr. Dominguez’s “assert[ion] that [his
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`plea] was not knowing because [he] lacked the pertinent information regarding
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`the stacking of the § 924(c) counts that would have altered his decision to plead
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`in this case.” Id., Vol. I, at 43 (District Ct. Order Den. Def.’s Mot. to Withdraw
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`Guilty Plea, filed Feb. 28, 2019). In light of the court’s Rule 11 colloquy, in
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`which Mr. Dominguez stated he understood his plea agreement’s terms and
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`consequences, the court reasoned that the fact Mr. Dominguez “was not aware of
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`13
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`
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`potential statutory changes d[id] not provide a sufficient basis . . . to find that his
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`guilty plea was not knowingly entered.” Id. at 44.
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`The court also found unpersuasive Mr. Dominguez’s argument that he was
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`denied “close assistance” of counsel, in no small part because Mr. Dominguez
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`“continually stated [at his change of plea hearing] that he was satisfied with the
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`advice of counsel he received throughout the entire process.” Id. at 43.
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`Moreover, Mr. Dominguez’s attorney “provided [Mr. Dominguez] with advice
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`based on the law that was in place at the time of the negotiations,” when “passage
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`of the First Step Act was uncertain”; his attorney’s “[f]ailure to fully consider
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`th[e] legislation” until after it was signed into law “d[id] not constitute . . . lack
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`of close . . . assistance of counsel.” Id. at 42–43; see also id. at 43 (“[Mr.
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`Dominguez] is entitled to close assistance of counsel, not clairvoyant nor perfect
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`assistance, and certainly not assistance based on 20/20 hindsight.”). The district
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`court, accordingly, denied Mr. Dominguez’s motion to withdraw his guilty plea.
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`Mr. Dominguez now appeals from that denial, asserting two bases for
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`reversal: (1) his plea was not knowingly and intelligently made,5 and (2) he was
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`In its decision, the district court exclusively used the term “knowing”
`5
`in addressing whether Mr. Dominguez understood the relevant consequences and
`circumstances of his guilty plea. See R., Vol. I, at 43–44 (considering whether
`Mr. Dominguez’s “guilty plea was knowing and voluntary” and concluding that
`Mr. Dominguez did “not provide a sufficient basis for the [district court] to find
`that his guilty plea was not knowingly entered” (emphases added)). In his
`appellate briefing, Mr. Dominguez, in addressing essentially the same question,
`toggles between using the term “knowing” and using the term “intelligent”—that
`(continued...)
`
`14
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`
`
`5(...continued)
`is, he alternates between asserting that he did not knowingly plead guilty and
`asserting that he did not intelligently plead guilty. See Aplt.’s Opening Br. at
`13–14 (claiming his guilty plea was not an “intelligent act” and was not
`“intelligently made”); id. at 17 (contending his plea was “not knowing and
`intelligent”); Aplt.’s Reply Br. at 1 (maintaining that his plea “was not knowingly
`made”); see also Aplt.’s Reply Br. at 2 (“A guilty plea must be knowingly made.
`‘Knowingly’ means that the plea must represent a ‘deliberate, intelligent choice
`between available alternatives.’” (emphases added) (citation omitted) (quoting
`United States v. Gigot, 147 F.3d 1193, 1199 (10th Cir. 1998))).
`
`Nevertheless, we understand the subject matter of the district court’s order
`and Mr. Dominguez’s arguments to be essentially the same—irrespective of
`whether only one of the two terms is used (as was the district court’s wont) or the
`two terms are used alternatively or in a “toggling” fashion (as is Mr. Dominguez’s
`frequent practice in his briefing). To this point, while it is arguable these two
`terms are conceptually distinct, even if only slightly so, see O’Neal v.
`Newton-Embry, 501 F. App’x 718, 719 n.1 (10th Cir. 2012) (unpublished) (“Pleas
`must be knowing, voluntary, and intelligent in order to be constitutionally valid.
`Those different modifiers denote unique guarantees, but courts sometimes omit
`one or more, or appear to use them somewhat interchangeably, when referring to
`the general constitutional requirement regarding pleas.” (citations omitted)),
`controlling precedent from our court and the Supreme Court, along with caselaw
`from our sister circuits, have essentially treated these two terms as synonymous
`and interchangeable in the guilty-plea context, making no meaningful effort to
`attribute discrete and disparate meanings to them. See Brady v. United States,
`397 U.S. 742, 748 (1970) (“Waivers of constitutional rights not only must be
`voluntary but must be knowing, intelligent acts done with sufficient awareness of
`the relevant circumstances and likely consequences.” (emphasis added)); United
`States v. Muhammad, 747 F.3d 1234, 1239 (10th Cir. 2014) (under the heading,
`“Whether Defendant’s Plea Was Knowing and Voluntary,” explaining that, “[t]o
`be valid, a guilty plea must represent a voluntary and intelligent choice among the
`alternative courses of action open to the defendant” (emphases added) (quoting
`United States v. Dunbar, 718 F.3d 1268, 1279 (10th Cir. 2013))); United States v.
`Vidal, 561 F.3d 1113, 1119 (10th Cir. 2009) (first noting that “[g]uilty pleas must
`be entered intelligently and voluntarily,” and then immediately defining a
`“knowing” plea as one where “the defendant has ‘a full understanding of what the
`plea connotes and of its consequence’” (emphases added) (quoting Gonzales v.
`Tafoya, 515 F.3d 1097, 1118 (10th Cir. 2008))); Cunningham v. Diesslin, 92 F.3d
`(continued...)
`
`15
`
`
`
`denied “close assistance” of counsel.
`
`5(...continued)
`1054, 1060 (10th Cir. 1996) (“In order to comport with due process guarantees, a
`defendant must have voluntarily and intelligently entered a guilty plea. The plea
`must be knowing and the product of a deliberate, intelligent choice.” (emphases
`added) (citation omitted)); cf. Jones v. Walker, 540 F.3d 1277, 1287 n.4 (11th Cir.
`2008) (noting that, in the context of a “valid waiver of a constitutional right,” the
`term “‘knowing’ is synonymous with ‘intelligent,’” while “‘voluntary’ is
`synonymous with ‘competent’ and ‘intentional’”).
`
`In particular, in our precedent, the two terms “knowing” and “intelligent”
`frequently have traveled together, even though we have not made a meaningful
`effort to attribute distinct meanings to them. See Gigot, 147 F.3d at 1199 (“A
`plea must ‘constitute a deliberate, intelligent choice between available
`alternatives’ in order to be knowingly and intelligently made.” (quoting United
`States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990))); United States v. Wright,
`43 F.3d 491, 495 (10th Cir. 1994) (“The Supreme Court has often reiterated that a
`defendant’s guilty plea must be knowing and intelligent to be a constitutional
`basis for conviction.”); see also United States v. Hurlich, 293 F.3d 1223, 1230
`(10th Cir. 2002) (“A defendant’s guilty plea must be knowing, voluntary, and
`intelligent.”); cf. United States v. Vargas, 316 F.3d 1163, 1166–67 (10th Cir.
`2003) (noting the “law’s concern that when a defendant surrenders important
`rights and claims, such decisions must be knowing and intelligent”—a concern
`that “is pervasive in our precedents” (collecting cases)).
`
`As such, in the interest of consistency and clarity, we adopt that convention
`here. That is, we most often use in this opinion (excepting language quoted from
`other sources) the two terms in tandem in the following or a like manner:
`“knowing and intelligent,” or “knowingly and intelligently.” We do so in
`addressing, in essence, the same question as the district court and the
`parties—that is, whether Mr. Dominguez properly understood the relevant
`circumstances and consequences associated with his guilty plea. See Gonzales,
`515 F.3d at 1118 (“A plea is ‘knowing’ if the defendant has ‘a full understanding
`of what the plea connotes and of its consequence.’” (quoting Boykin v. Alabama,
`395 U.S. 238, 244 (1969))). To be clear, however, in light of the foregoing
`discussion—noting that the two terms have been used interchangeably in
`controlling precedent—we do not intend to opine on whether the convention of
`using “knowing and intelligent” together—rather than using one or the other term
`in isolation—is the most appropriate statement of the relevant standard.
`
`16
`
`
`
`II
`
`We review the district court’s denial of Mr. Dominguez’s motion to
`
`withdraw his guilty plea under our “deferential” abuse-of-discretion standard.
`
`United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009); accord United
`
`States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005) (en banc); cf. United States
`
`v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000) (“Defendants do not have an
`
`absolute right to withdraw a guilty plea.”). To withdraw his guilty plea, Mr.
`
`Dominguez “bears the burden of establishing a fair and just reason” for his
`
`request. United States v. Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016)
`
`(quoting United States v. Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007)); see
`
`FED. R. CRIM. P. 11(d)(2)(B) (“A defendant may withdraw a plea of guilty . . .
`
`after the court accepts the plea, but before it imposes sentence if: . . . the
`
`defendant can show a fair and just reason for requesting the withdrawal.”).
`
`In determining whether Mr. Dominguez has presented a “fair and just
`
`reason” for his withdrawal request, we have typically considered the following
`
`factors:
`
`(1) whether the defendant has asserted his innocence; (2) whether
`withdrawal would prejudice the government; (3) whether [he]
`delayed in filing his motion, and if so, the reason for the delay;
`(4) whether withdrawal would substantially inconvenience the
`court; (5) whether close assistance of counsel was available to
`[him]; (6) whether [his] plea was knowing and voluntary; and
`(7) whether the withdrawal would waste judicial resources.
`
`17
`
`
`
`Yazzie, 407 F.3d at 1142 (quoting United States v. Sandoval, 390 F.3d 1294, 1298
`
`(10th Cir. 2004)); see also United States v. Sanchez-Leon, 764 F.3d 1248, 1258
`
`(10th Cir. 2014) (framing these “seven factors” as follows: “(1) whether the
`
`defendant has asserted his innocence, (2) prejudice to the government, (3) delay
`
`in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s
`
`assistance of counsel, (6) whether the plea is knowing and voluntary, and (7)
`
`waste of judicial resources.” (quoting Hamilton, 510 F.3d at 1214)). Here, Mr.
`
`Dominguez challenges the district court’s denial of his motion to withdraw his
`
`guilty plea based on two of these factors: (1) whether his plea was knowingly and
`
`intelligently made and (2) whether he received “close assistance” of counsel.
`
`Notably, Mr. Dominguez does not assert that he is innocent of the charged crimes
`
`(i.e., the first Yazzie factor), nor does he allege that his plea was involuntary (i.e.,
`
`part of the sixth Yazzie factor).
`
`Beyond these specific factors, we have acknowledged that, though
`
`“motion[s] to withdraw a plea prior to sentencing should be freely allowe