NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1967 _______________

UNITED STATES OF AMERICA

v.

ANDREW BERKOWITZ Appellant _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-19-cr-00356-001) District Judge: Honorable Paul S. Diamond _______________

Submitted Under Third Circuit L.A.R. 34.1(a): February 9, 2023 _______________

Before: CHAGARES, Chief Judge, SCIRICA, and SMITH, Circuit Judges.

(Filed: February 17, 2023) _____________________

OPINION _____________________

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Defendant-appellant Andrew Berkowitz pled guilty to health care fraud and

Controlled Substances Act violations. But after he pled guilty, he sought to withdraw his

guilty plea. The District Court did not permit Berkowitz to withdraw his guilty plea and

sentenced him to 240 months of imprisonment. On appeal, Berkowitz contends that the

District Court erred by denying his requests to withdraw his guilty plea and that the

sentence the District Court imposed was procedurally and substantively unreasonable.

For the following reasons, we will affirm the judgment of the District Court.

I.

Because we write primarily for the parties, we recite only the facts essential to our

decision.

Berkowitz, a medical doctor, operated a pain management clinic in Philadelphia.

He routinely prescribed controlled substances — such as opioids and muscle relaxers —

without any meaningful assessment of whether those drugs were medically necessary.

He submitted insurance claims for these medically unnecessary prescriptions to several

insurance companies and received over $9 million in reimbursement for these fraudulent

insurance claims. At least one of Berkowitz’s patients died of a drug overdose.

The FBI began to investigate Berkowitz’s practice after a health insurer reported

that one of its insureds had expressed concerns about Berkowitz’s conduct after seeking

treatment from him. As part of the Government’s investigation into Berkowitz’s practice,

two people recruited by federal law enforcement posed as patients and recorded their

conversations with Berkowitz. During those conversations, Berkowitz offered to

2 prescribe controlled substances without a legitimate medical purpose, separately asked

the two individuals to sign fraudulent medical billing paperwork for services they had not

actually received, demonstrated an understanding that the opioids he prescribed would be

diverted for resale, and expressed concern that he could be prosecuted if his conduct were

disclosed to the Government.

Berkowitz was later indicted on 19 counts of health care fraud, in violation of

, and 23 counts of distributing controlled substances without a legitimate

medical purpose, in violation of

. After his arrest, he retained an

attorney, Richard Hark. But early in the case, the Government requested a hearing on

whether Hark had a conflict of interest based on his prior representation of one of

Berkowitz’s coconspirators. Hark withdrew, and Berkowitz retained a new attorney,

Marc Neff.

Neff and the Government negotiated a plea agreement for Berkowitz, and on

November 22, 2019, Berkowitz executed the plea agreement. Under the plea agreement,

Berkowitz agreed to plead guilty to all 42 counts charged in the indictment. The plea

agreement included an acknowledgment of rights and an appellate waiver. Under the

appellate waiver’s terms, Berkowitz was only permitted to bring an appeal to contest a

sentence above the statutory maximum on any count of conviction, to challenge a

sentence qualifying as an upward departure or variance above the sentence recommended

by the United States Sentencing Guidelines (the “Guidelines”), or to bring an ineffective

assistance of counsel claim.

3 Berkowitz formally pleaded guilty before the District Court on January 24, 2020.

Before accepting his plea, the District Court undertook an extensive colloquy with

Berkowitz. Berkowitz acknowledged the waiver of certain rights and the District Court

found that he was competent to plead guilty. Berkowitz confirmed that he had a chance

to discuss his case with Neff and that he was satisfied with Neff’s representation, and he

denied being threatened or induced to plead guilty. Berkowitz then acknowledged that he

was voluntarily pleading guilty to the crimes charged in the indictment and the District

Court accepted his guilty plea. The District Court remanded Berkowitz into federal

custody to await sentencing.

In April 2020, Neff sought to withdraw as Berkowitz’s counsel due to a

breakdown in the attorney-client relationship. After holding a hearing on Neff’s motion

to withdraw, the District Court became concerned about Berkowitz’s competency, and it

ordered that Berkowitz undergo a competency examination. Berkowitz was found to be

competent, and in May 2021, the District Court granted Neff’s motion to withdraw.

Over the course of the next year, Berkowitz engaged in what the District Court

characterized as “angry and abusive conduct.” Appendix (“App.”) 2. He hired and fired

several law firms and repeatedly alternated between expressing a desire to be represented

by counsel at sentencing and requesting to proceed pro se. Berkowitz also filed a series

of pro se motions to withdraw his guilty plea in which he claimed innocence and alleged

that Neff provided him ineffective assistance of counsel.

The District Court ultimately held a hearing on Berkowitz’s request to withdraw

his guilty plea. Both Neff and Berkowitz testified. At the end of the hearing, the District

4 Court denied Berkowitz’s request. It explained its reasons for the denial in a 22-page

opinion. In that opinion, the District Court found that “Berkowitz’s hearing testimony

was not credible” because, while he claimed his innocence and made “abusive,

scattershot attacks on his lawyers, the prosecutor, the [Bureau of Prisons], and the Court,”

he did not “adequately or credibly explain why, if he were innocent, he had pled guilty.”

App. 6. It further found that Berkowitz was competent to plead guilty, that Neff had

competently represented him, that Berkowitz had not been coerced into pleading guilty,

and that Berkowitz’s request to withdraw his guilty plea was motivated by an intent to

“manipulate and obstruct” the proceedings. App. 11.

The District Court then sentenced Berkowitz. It imposed a within-Guidelines

sentence of 240 months of imprisonment. Berkowitz timely appealed.

II.1

Berkowitz makes two arguments on appeal: that the District Court erred by

denying his motion to withdraw his guilty plea, and that the District Court’s sentence was

both procedurally and substantively unreasonable. Both arguments lack merit.

A.

We will first evaluate Berkowitz’s argument that the District Court incorrectly

denied his motion to withdraw his guilty plea. We review the District Court’s decision

for abuse of discretion. United States v. Siddons,

(3d Cir. 2011).

1 In this criminal case, the District Court had jurisdiction under

. We have jurisdiction to review Berkowitz’s conviction and sentence under

and

(a).

5 “[A] guilty plea may not automatically be withdrawn at the defendant's whim.”

United States v. Brown,

(3d Cir. 2003). After a defendant’s guilty

plea has been accepted by the district court, the Federal Rules of Criminal Procedure

permit the defendant to withdraw the plea only if “the defendant can show a fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have explained

that, in determining whether a defendant has offered the requisite “fair and just reason”

for withdrawal of a guilty plea, district courts must consider “whether the defendant is

asserting his innocence, the strength of the defendant's reasons for withdrawing his plea,

and whether the government would suffer prejudice because of the withdrawn plea.”

United States v. Kwasnik,

, 216–17 (3d Cir. 2022).

A defendant “bears a substantial burden” in showing that withdrawal of a guilty

plea is justified. Siddons,

. “Bald assertions of innocence . . . are

insufficient” to support withdrawal of a guilty plea; instead, “[a]ssertions of innocence

must be buttressed by facts in the record that support a claimed defense.” Brown,

. A defendant must also “give sufficient reasons to explain why contradictory

positions were taken before the district court and why permission should be given to

withdraw the guilty plea.” Kwasnik,

.

In its comprehensive opinion, the District Court concluded that Berkowitz did not

present a “fair and just reason” for withdrawing his guilty plea. We agree. Berkowitz did

not make a credible assertion of innocence. His claim of innocence contradicted his

acknowledgment of his guilt under oath at the guilty plea hearing. Moreover, the

evidence against Berkowitz was overwhelming. The evidence included recordings of

6 Berkowitz knowingly distributing controlled substances without a legitimate medical

purpose and instructing patients to sign fraudulent health insurance claim forms, and

Berkowitz’s coconspirators were also cooperating with the Government. Berkowitz also

failed to provide a strong reason to support withdrawing his plea. The District Court

found that, despite Berkowitz’s arguments, Berkowitz was competent to enter a guilty

plea at the time he did so, that he did so voluntarily and with the benefit of competent

legal representation, and that his after-the-fact efforts to withdraw his guilty plea were

motivated by a desire to obstruct the proceedings.2 Finally, the District Court correctly

found that the Government would be prejudiced by withdrawal of the guilty plea because

it would have to undergo the significant burden and expense of trying a defendant who

had once pleaded guilty. See Jones, 336 F.3d at 252. In sum, we conclude that

Berkowitz did not provide a “fair and just reason” for withdrawing his guilty plea, and

that the District Court did not abuse its discretion by denying Berkowitz’s request.

B.

2 Berkowitz also argues that the Supreme Court’s recent decision in Ruan v. United States,

(2022), is an intervening legal development that serves as a strong reason for withdrawing his guilty plea. But the holding in Ruan is of no benefit to Berkowitz. In Ruan, the Supreme Court held that, in a prosecution in which the Government alleges that the defendant medical professional’s prescription practices violated the Controlled Substances Act, “the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.”

. In this case, there was overwhelming evidence that Berkowitz knowingly and intentionally acted in an unauthorized manner. In his own recorded words, he acknowledged that he knew the controlled substances he prescribed would likely be diverted for resale and that he risked prosecution if his prescribing practices were exposed.

7 We turn to Berkowitz’s argument that his prison sentence was procedurally and

substantively unreasonable. Before we may address Berkowitz’s sentencing arguments

on the merits, we must determine whether the appellate waiver in Berkowitz’s plea

agreement bars us from considering them. “We decline to exercise jurisdiction over [an]

appeal where the issues on appeal fall within the scope of [an appellate] waiver and the

defendant knowingly and voluntarily agreed to the waiver, unless enforcing the waiver

would work a miscarriage of justice.” United States v. Agarwal,

(3d

Cir. 2022) (quotation marks omitted).

As the District Court found — and as Berkowitz himself acknowledged when he

executed the plea agreement and when he spoke at his guilty plea hearing — Berkowitz

knowingly and voluntarily entered into the plea agreement. The appellate waiver

enumerates only four specific circumstances in which Berkowitz may appeal his

sentence, and none of those circumstances are present here: he was not sentenced above

the statutory maximum on any count of conviction, the District Court did not impose an

upward departure or variance, and Berkowitz does not credibly argue that he received

ineffective assistance of counsel. Finally, Berkowitz has not shown that a miscarriage of

justice will result if the plea agreement is enforced. The appellate waiver is therefore

enforceable. And because the appellate waiver is enforceable, we will not consider

Berkowitz’s challenge to his sentence.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.

8