United States v. Gardner, No. 20-50481 (5th Cir. 2021)Annotate this Case
Gardner was indicted for possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine. He retained counsel (Bailey) and pleaded guilty without a plea agreement. Three months later, Gardner’s initial PSR was filed. On the day of sentencing, Bailey orally moved for and obtained a continuance to file objections to the PSR. Days later, Gardner, pro se, moved to appoint new counsel, saying that Bailey previously told him that objections to the PSR had already been filed and that Bailey gave him inconsistent information as to the availability of audio or video footage of the search that led to his arrest. The court granted Bailey’s subsequent motion to withdraw and appointed new counsel, Bullajian, and subsequently granted Bullajian four continuances.
Gardner then moved to withdraw his guilty plea, alleging ineffectiveness by former counsel Bailey, who told him “that a motion to suppress would be filed after the entering of the plea.” The district court denied the motion to withdraw the plea without an evidentiary hearing, sentencing Gardner to 240 months’ imprisonment. The Fifth Circuit vacated. Gardner alleged sufficient facts to require a hearing upon the motion to withdraw, and if granted, his motion to suppress.