Opinion
No. 98-40107-05-SAC.
January 30, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Michael E. Russell's motion to withdraw plea (Dk. 220) to which the government has filed its response in opposition (Dk. 225). Counsel presented their arguments and evidence on January 11, 2001. The defendant testified and introduced two exhibits into evidence. Having reviewed the matters submitted and researched the relevant law, the court is ready to rule.
INDICTMENT AND PLEA
Michael Russell was one of six defendants named in the 25-count superseding indictment. He was charged with one count of conspiracy to distribute in excess of one kilogram of a methamphetamine mixture in violation of 21 U.S.C. § 846 and one count of possession with the intent to distribute 27.54 grams of a methamphetamine mixture on March 14, 1999, in violation of 21 U.S.C. § 841(a)(1). At his detention hearing, Russell testified that he never possessed the methamphetamine on March 14, 1999, for which he was charged. A second superseding indictment was returned on May 10, 2000, charging Russell with the same two drug offenses and with perjury for his testimony in the detention hearing.
On July 21, 2000, the defendant changed his plea to guilty on count two charging possession with the intent to distribute methamphetamine and count three charging perjury. During the plea hearing, the defendant did not stipulate to but disputed the quantity of methamphetamine with which he is charged in count two. The defendant said that he was entering a guilty plea to possessing an "eight-ball" or 3.45 grams of methamphetamine with the intent to distribute it and that he disputed that the methamphetamine he possessed on March 14, 1999, weighed 27.45 grams as charged in count two of the second superseding indictment. The court accepted the defendant's plea "with the caveat" that at sentencing the court will determine "the weight of the mixture that has a detectable amount of methamphetamine." (Dk. 170, p. 43).
FACTS
The presentence investigation report ("PSR") was prepared on September 21, 2000, and revised on December 14, 2000. To date, the defendant Russell has filed no objections to it. The following summary of events is taken from the PSR for purposes only of understanding the issues presented. The court reserves its findings as to these facts until the time of sentencing.
Officers with the Osage County Sheriff's Department arrested the defendant on March 14, 1999, after he refused to pull over for a traffic violation and then discarded items, including methamphetamine, from his vehicle during the subsequent police chase. The methamphetamine recovered by officers was sent to the Kansas Bureau of Investigation for testing and was found to weigh 27.45 grams. Interested in cooperating with law enforcement, the defendant met with Deputy Phil Hernandez of the Osage County Sheriff's Department and later with Special Agent Walt Thrower of the Drug Enforcement Administration ("DEA"). Though Russell provided agents with some information, the agents believed the information was incomplete, if not misleading.
On May 7, 1999, officers arrested Joseph Sessel for burglary and found him in possession of five pounds of methamphetamine. After agreeing to cooperate with law enforcement, Sessel was debriefed admitting he had been a lieutenant in Todd Moore's drug distribution organization. Sessel told officers that the defendant Russell was one of his largest customers and that he had provided Russell with multiple pound quantities of methamphetamine from Moore. During the Sessel investigation, DEA Agent Thrower obtained surveillance photos showing Russell's vehicle at Sessel's residence. Russell had told officers that he did not know Sessel during the time period when these photos were taken. Josh Baker, an unindicted coconspirator told officers that defendant went by the name of "Old Navy" and that Russell was one of Sessel's biggest customers obtaining multiple pound quantities of methamphetamine.
Coconspirator James Meredith has told officers that sometime after April 28, 1999, he transported three pounds of methamphetamine for Todd Moore to the defendant Russell. Meredith said that he met Russell at Kansas City International Airport, that Russell was carrying a gun, and that Russell paid Meredith approximately $120,000 for the methamphetamine.
Chelsea Rose, a defendant in a related case before Judge Rogers, told officers that she delivered four pounds of methamphetamine to Russell in Kansas City and that he paid her $20,000 for the drugs. The PSR does not disclose whether Rose told officers the date of her delivery. Co-defendant Todd Moore was debriefed and confirmed that Russell was one of Sessell's primary methamphetamine distributors. Moore said he had discussed his distribution with Russell, that he had arranged for Meredith's delivery to Russell, and that he typically fronted most of the methamphetamine to Russell. Moore also corroborated Rose's delivery of methamphetamine to Russell.
According to ¶ 44 of the PSR, "[t]he defendant does not dispute the information provided by coconspirators in this case. However, he believes he was acting in an informant capacity when all the events took place." At the pretrial motions hearing, the defendant testified about the scope of his informant's agreement and about an incident on April 6, 1999, when he turned over to Deputy Hernandez one pound of methamphetamine which Todd Moore had given him. Hernandez testified at the same hearing that Russell had telephoned him before receiving the one pound and that he told Russell later not to worry about this methamphetamine since Russell had turned it over to him. Deputy Hernandez further testified that he had little or no contact with Russell after this incident on April 6, 1999.
Based on Deputy Hernandez' representation to Russell, the PSR recommends that Russell not be held accountable for this one pound of methamphetamine on April 6, 1999. The PSR states as a finding that Russell was not acting in any informant capacity when he took delivery of three pounds of methamphetamine from Meredith and four pounds from Rose. The PSR concludes that these amounts and the 27.45 grams recovered on March 14, 1999, are attributable to Russell as part of his relevant conduct. The PSR writer calculates a quantity of 3.2 kilograms of methamphetamine for a base offense level of 34, a two-point enhancement for possessing a dangerous weapon during the transactions with Meredith and Rose, and a two-point enhancement for obstruction of justice based on his perjury in the detention hearing to which he pleaded guilty. Less three points for acceptance of responsibility, the defendant's total offense level is 35 with a criminal history category of IV for a guideline range of 235 to 293 months. Because the maximum term of imprisonment is 20 years, 21 U.S.C. § 841(a)(1), the guideline range is 235 to 240 months.
Insofar as the impact of the plea agreement, the PSR states:
If the defendant had been convicted of Count 1 of the Second Superseding Indictment, a conspiracy count, he could have faced statutory penalties of NLT 10 years NMT Life Imprisonment, at least 5 years of supervised release, a $4,000,000 fine, and a $100 CVF assessment. Dismissal of this count does not effect the guideline range as reflected in the presentence report.
(PSR, ¶ 106). Presumably, the dismissal of the conspiracy Count 1 does affect the upper end of the guideline range applicable to Russell. If convicted on Count 1, the defendant would have faced a guideline range that extended to 293 months as opposed to the statutory maximum of 240 months.
LEGAL STANDARDS
"A guilty plea is void if it is not knowing and voluntary." United States v. Gigley, 213 F.3d 509, 516 (10th Cir. 2000) (citing Parke v. Raley, 506 U.S. 20, 28 (1992)). The plea must "represent a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)). "This is because `a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.'" United States v. Gray, 152 F.3d 816, 820 (8th Cir. 1998) (quoting Parke, 506 U.S. at 29), cert. denied, 525 U.S. 1169 (1999). Circumstances where a plea has not been upheld as voluntary include:
"A guilty plea entered upon the advice of counsel is invalid if the plea was coerced, Osborn v. Shillinger, 997 F.2d 1324, 1327 (10th Cir. 1993), or if the advice of defendant's counsel was not within the range of competence demanded of attorneys in criminal cases, Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).Id. "[W]hile an erroneous sentence estimate does not render a plea involuntary, if an attorney `unfairly holds out an assurance of leniency in exchange for a confession of guilt, the question may arise whether such assurances were coercive.'" United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988) (quoting Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970)).
"There is no absolute right to withdraw a guilty plea." United States v. Rhodes, 913 F.2d 839, 845 (10th Cir. 1990), cert. denied, 498 U.S. 1122 (1991); see United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir. 1990) ("[A] defendant does not have any absolute right to withdraw his plea of guilty even though the motion is made before sentencing"), cert. denied, 498 U.S. 1089 (1991). Under Fed.R.Crim.P. 32(e), the district court may permit a defendant to withdraw a plea of guilty before the sentence is imposed "if the defendant shows any fair and just reason" for doing so. A motion to withdraw a guilty plea is committed to the district court's sound discretion "to determine what circumstances justify granting" it. United States v. Jones, 168 F.3d 1217, 1219 (10th Cir. 1999). Even so, "such motions should be `freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude.'" Id. (quoting United States v. Carr, 80 F.3d at 419).
"The defendant bears the burden of showing a fair and just reason." United States v. Burger, 964 F.2d 1065, 1070-71 (10th Cir. 1992), cert. denied, U.S. (1993). If the defendant meets this burden, then the government "has the opportunity to demonstrate prejudice." United States v. Gould, 78 F.3d 598, 1996 WL 108497 at *1 (10th Cir. 1996) (Table) (citation omitted); see United States v. Hickok, 907 F.2d 983, 986 (10th Cir. 1990) ("Unless a defendant presents a `fair and just reason' for the withdrawal, the court need not consider prejudice to the government.") (citation omitted); United States v. Rowzer, 80 F. Supp.2d 1212, 1217 (D.Kan. 1999); Fed.R.Crim.P. 32, Advisory Committee Notes, 1983 Amendment (adopting position taken by the Second Circuit in United States v. Saft, 558 F.2d 1073 (2nd Cir. 1977) that "there is no occasion to inquire into the matter of prejudice unless the defendant first show a good reason for being allowed to withdraw his plea."). This court in Rowzer also quoted the following comments to Rule 32(d) regarding this burden of proof:
Given the great care with which pleas are taken under this revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before sentence whenever the government cannot establish prejudice.
Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."
80 F. Supp.2d at 1217 (quoting Fed.R.Crim.P. 32, Advisory Committee Notes, 1983 Amendment ( quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) ( quoting Brady v. United States, 397 U.S. 742 (1970)), cert. denied, 421 U.S. 1013 (1975)); see United States v. Hyde, 520 U.S. 670 (1997). The Supreme Court reiterated in Hyde that:
After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, [a defendant cannot] withdraw his guilty plea simply on a lark.
Id. at 676.
Whether a defendant has carried his burden of demonstrating a fair and just reason for allowing withdrawal of his guilty plea is a determination based upon the following factors:
(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 was knowing and voluntary; and
(7) waste of judicial resources.
United States v. Gigley, 213 F.3d at 516 (citing United States v. Jones, 168 F.3d at 1219).
In United States v. Glover, 911 F.2d 419, 421 (10th Cir. 1990), the Tenth Circuit discussed an additional factor in determining whether the defendant has demonstrated a fair and just reason: the likelihood of conviction. "In the face of [defendant's] admitted and palpable guilt, permitting the defendant to withdraw his plea would only result in a postponement of the inevitable." Id. at 421.
ARGUMENTS
The defendant argues that the sentence recommended in the PSR demonstrates that he received no benefit from his plea agreement. If his plea is withdrawn and his motion to suppress is successfully advanced, then he can defeat the substantial drug quantities determined in the PSR to be relevant conduct under the sentencing guidelines. While recognizing that the sentencing court may not follow the recommendations in the PSR, "the defendant does not wish to take the chance of proceeding to Sentencing, rather wishing to take `his chances' before the jury on both the substantive counts and the underlined drug quantity considerations." (Dk. 220, pp. 2-3).
The defendant attaches to the motion his affidavit in which he states that his attorney advised him:
"that the drug quantities in the alleged conspiracy that otherwise was the subject matter of this instant case would not be considered "relevant conduct" by reason the fact that I entered into written confidential informant agreements with both the Osage County, Kansas Sheriff's Department and the DEA during the times in which the agreements were in effect.
(Dk. 220, Aff. of Michael Russell, ¶ 2). The defendant avers his understanding is documented by a confidential memorandum prepared by his attorney that is dated June 28, 2000, less than a month before his change of plea. The court has read that memorandum and finds the following written statement about relevant conduct:
The relevant conduct issue as it pertains to drug quantity if a plea is entered on possession with intent to sell on the 27.5 grams Count of the Indictment will only relate to matters as to possession with intent, and not a conspiracy in the Todd Moore, et al matter, as that pertains to manufacture and distribution primarily. Again, I believe that Judge Crow will not take that into consideration if a plea is entered of Todd Moore, et al, because that is remote and removed from the actual offense for which you are entering your plea on, to wit: possession with intent to sell 27.5 grams (Osage County). This is further based on the fact that you were doing a delivery. Consequently, drug quantity may be a matter for prior possessions with intent to sell, which I do not believe you have any other than possibly a marijuana matter. Although marijuana under the drug quantity tables is very favorable to the defendant and should be of little or no consequence pertaining to drug quantity. We will have to discuss that further.
. . . .
Consequently, it is my strong recommendation that you accept the proposed Plea Agreement with the changes that I previously requested you to consider, so that you will be facing a mandatory minimum of five (5) years, rather than a potential mandatory minimum of twenty (20) years. . . . Further, because the drug conspiracy has such great drug quantities, you will be looking at maximums if you are convicted on the conspiracy count of the Superceding Indictment and these will be "maxed" out due to such great drug quantities. I reviewed the drug tables with you and your level offense will be at the high end and will equate to a very lengthy mandatory minimum under the U.S. Sentencing Guidelines. This is a risk that I do not want you to take, and I believe it is in your best interest, all things considered, to accept the Plea Agreement and take our chances within the perimeters of the sentencing requirements for relevant conduct on possession with intent. In addition, Judge Crow has been fairly conservative and has not been adopting high-end drug quantities, but wants information that is more convincing to him than the recommendation of government or U.S. Probation Office.
(Dk. 220, Confid. Memo, Def. Ex. R1). Beneath this memorandum, the defendant signed the statement that he had reviewed these recommendations and accepted the plea bargain as modified. Noticeably missing from the attorney's memorandum is any advice that the defendant could rely on the confidential informant agreements to defeat relevant conduct. The defendant further avers that he would not have entered the plea agreement had he known relevant conduct would include those drug quantities "during the time" he was involved with the conspiracy "by reason of the written confidential informant agreements." Finally, the defendant refers to the recent decision of Apprendi v. New Jersey, 530 U.S. 466 (Jun. 26, 2000), and says his counsel has advised that he has "a good and meritorious defense to this prosecution on the element of drug quantity."
The government points out the defendant benefits substantially from the plea agreement. The seven pounds of methamphetamine trigger the ten-year mandatory minimum sentence in 21 U.S.C. § 841 (b)(1)(A), and the defendant's prior felony drug conviction increases the mandatory minimum sentence to twenty years. The plea agreement, however, precludes the government from filing an information pursuant to 21 U.S.C. § 851 which removes the possibility of a twenty-year mandatory minimum. In addition, the sentencing court still must determine relevant conduct and may not adopt the PSR's recommendations at the time of sentencing. Thus, the plea agreement effectively narrows the defendant's possible sentence from a mandatory minimum of twenty years or longer to a sentence no longer than twenty years.
The government contends the defendant's motion is motivated by nothing more than dissatisfaction with the PSR. The government points out that at the change of plea hearing it fully disclosed its position on relevant conduct which was substantially adopted in the PSR. At that time, the defendant and his counsel told the court they understood the government's position:
MR. MATTIVI: The government's position, Your Honor, is that that is all clearly relevant conduct, that it will be encompassed in terms in the guideline sentence that's imposed in this case. . . . The agreement we came up with was the plea is entered, each side is free to contest relevant conduct. I'm putting it on the record and I've made it known to Mr. Kjorlie through the plea process as I'm making it known today, the government's position is that all of the conduct I've mentioned during the factual basis is, in fact, relevant conduct to counts 2 and 3 of the indictment — or of the second superseding indictment to be more correct.
THE COURT: And the relevant conduct that you're directing the Court's attention to now not only deals with the grams — the weight, but also other issues?
MR. MATTIVI: Yes, sir.
THE COURT: Does counsel for the defendant understand that?
MR. KJORLIE: Oh, Yes, Your Honor, we do.
THE COURT: Mr. Russell, do you understand that?
MR. RUSSELL: I understand it, but.
THE COURT: If you don't, I don't want to go with this plea. If you don't understand what we're doing, the Court will not accept your plea and we'll set it down for trial.
MR. RUSSELL: I understand. But I am in no way accepting his relevant conduct ideas. I mean, I understand what's being said here and I understand what the plea is about, but I am not understanding — I do not agree his relevant conduct ideas.
THE COURT: Okay. The Court will make that determination at an appropriate time.
MR. RUSSELL: Yes, sir.
(Dk. 170, pp. 36-38). Following additional colloquy, the defendant entered his guilty plea and the court accepted it as "made freely, voluntarily, knowingly, and understandingly." (Dk. 170, p. 44).
ANALYSIS
(1) Assertion of innocence:
Neither in his testimony at the hearing nor in his brief does the defendant assert his innocence to counts two and three as a basis for withdrawing his plea. The defendant's only assertion of innocence is as to relevant conduct beyond the count of conviction. The defendant testified his involvement in the distribution of drugs was limited to the 3.5 grams of methamphetamine to which he pleaded guilty and the one pound of methamphetamine that he eventually turned over to Deputy Hernandez.
Rather than risking the sentencing court's determination of relevant conduct, the defendant now simply chooses to take his chances in front of a jury. "'[A] mere change of mind is insufficient to permit the withdrawal of a guilty plea before sentencing.'" United States v. Glinsey, 209 F.3d 386, 397 (5th Cir. 2000) (quoting United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990)), cert. denied, 121 S.Ct. 282 (2000). "His bare hope for acquittal is not a `legally cognizable defense,'" nor is it an assertion of innocence. United States v. Burk, 36 F.3d 1106, 1994 WL 526709, at *2 (10th Cir. 1994) (Table). Consequently, this favor weighs against the defendant.
(2) Prejudice to the government:
The defendant does not show any lack of prejudice to the government. The withdrawal of a plea inevitably prejudices the government to some degree. Carr, 80 F.3d at 420. The government argues prejudice from forcing officers and prosecutors now to turn their focus away from other matters and return their attention to a case thought to be over, from having called off at least ten anticipated witnesses, from its investigative agencies having effectively closed their files, from the DEA case agent having been transferred out of state, and from the significant effort needed to address Mr. Russell's defense that he was acting as a government informant when he participated in the drug transactions. This factor also weighs against the defendant.
(3) Delay in filing defendant's motion:
The defendant does not argue his delay of over five months in filing a motion to withdraw is reasonable or justified under the circumstances. A court must take into account "'[t]he amount of time which has passed between the plea and the motion.'" Rowzer, 80 F. Supp.2d at 1219 (quoting Fed.R.Crim.P. 32, Advisory Committee Notes, 1983 Amendment). While "[a] swift change of heart" is strong evidence of the defendant's "haste and confusion," a long delay requires more forceful and substantial reasons for withdrawal. Id. The Tenth Circuit in Carr summarized:
[I]f the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times the reasons given to support withdrawal must have considerable . . . force. The movant's reasons must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the Government's ability to prosecute the case.
Carr, 80 F.3d at 420 ( quoting United States v. Vidakovich, 911 F.2d at 439-40 (delay of five months).
The Tenth Circuit, as well as this court, have deemed much shorter delays unreasonable. See United States v. Gibson, 176 F.3d 489, 1999 WL 298181 (10th Cir. 1999) (Table) (three-month delay weighed against the defendant); United States v. Burk, 36 F.3d 1106, 1994 WL 526709 (10th Cir. 1994) (Table) (rejected as unreasonable the defendant's explanation that he had a change of heart after six week delay prompted by his belated assessment of his sentence); United States v. Rowzer, 80 F. Supp.2d at 1219 (delay of eight weeks is too long); United States v. Stewart, 51 F. Supp.2d 1147, 1152 (D.Kan. 1999) (delay of six weeks unreasonable), aff'd, 215 F.3d 1338 (10th Cir. 2000). This factor weighs against the defendant.
(4) Inconvenience to the court:
Like the prejudice to the government, the inconvenience to a court from the withdrawal of a plea "is inevitable." Carr, 80 F.3d at 420. If the defendant is permitted to withdraw his plea, rescheduling a week-long trial into the court's busy criminal docket will obviously inconvenience the court and cause delays in other pending cases. This factor weighs against the defendant. See id. at 420-21.
(5) Assistance of counsel:
The defendant does not contend his counsel has been ineffective. At the time of his plea, the defendant told the court that he was satisfied with his counsel's services. (Dk. 170, p. 12). The defendant, however, now avers that his counsel advised him that relevant conduct would not include his involvement in drug transactions while he was a party to a confidential informant agreement. As noted above, his counsel's memorandum attached to the defendant's affidavit does not include any such advice. The memorandum does opine that these other transactions would not be relevant conduct as they were too "remote and removed" from the offense of conviction. The memorandum, however, further states that with the plea agreement the defendant is taking his "chances" with the relevant conduct determinations on the offense of conviction. The gist of the defendant's argument is that his counsel estimated a sentence significantly shorter than that recommended in the PSR.
"Although constitutionally deficient performance by defense counsel may render a plea involuntary, '[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance.'" United States v. Williams, 118 F.3d 717, 718 (10th Cir.) (quoting United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994))), cert. denied, 522 U.S. 1033 (1997). Counsel's erroneous estimation is insufficient to justify withdrawal of the defendant's guilty plea. See United States v. Zambrano-Sanchez, 182 F.3d 934, 1999 WL 339694, at *3 (10th Cir. 1999) (counsel allegedly estimated a sentence of five to six and one-half years and the defendant received 151 months). At the change of plea hearing, the court advised the defendant that the maximum penalty for his drug conviction was twenty years. (Dk. 170, p. 39). The defendant told the court he understood this was the penalty that could be imposed on this count. Id. at 40. Consequently, the defendant's argument must fail. United States v. Enriquez, 205 F.3d 345, 348 (8th Cir.), cert. denied, 121 S.Ct. 214 (2000); United States v. Zambrano-Sanchez, 182 F.3d 934, 1999 WL 339694, at *3. "[D]issatisfaction with the length of a sentence is an insufficient reason to withdraw a plea." United States v. Gordon, 4 F.3d at 1573. Put another way, "[t]he unanticipated severity of a sentence is not a basis for withdrawal under Rule 32(d)." United States v. Burk, 36 F.3d 1106, 1194 WL 526709, at *2 (citing United States v. Rhodes, 913 F.2d at 845. This factor also weighs against the defendant.
(6) Voluntariness of the plea:
The defendant again fails to challenge the voluntariness of his plea. "The existence of a fundamental misunderstanding of the requirements and operation of the plea agreement is a fair and just reason for permitting [a] defendant to withdraw his plea." United States v. Ailsworth, 927 F. Supp. 1438, 1451 (D.Kan. 1996), aff'd, 138 F.3d 843 (10th Cir.), cert. denied, 525 U.S. 896 (1998); see United States v. Pressley, 602 F.2d 709, 711 (5th Cir. 1979) ("If [the defendant] was mistaken as to the terms of the plea bargain, his original plea must be deemed less than a fully knowledgeable waiver of his rights.").
The transcript from the change of plea hearing belies any assertion by the defendant that he was unaware of the relevant conduct for which he could be held accountable under the terms of the plea agreement. When asked to make a representation of what facts could be shown at a trial of this case, the government's counsel not only disclosed its evidence for the offense of conviction, but he also proceeded to disclose in detail the other transactions that the government intended to argue and prove at sentencing would qualify as relevant conduct. (Dk. 170, pp. 24-31). The defendant told the court he was pleading guilty to count two but he was not pleading guilty to the relevant conduct outlined in the government's proffer. (Dk. 170, p. 34). The government's counsel then reiterated his position about the transactions attributable as relevant conduct: "I'm putting it on the record and I've made it known to Mr. Kjorlie through the plea process as I'm making it known today, the government's position is that all of the conduct I've mentioned during the factual basis is, in fact, relevant conduct to counts 2 and 3." (Dk. 170, p. 37). When asked if he understood the government's representation about relevant conduct, the defendant told the court: "I understand. But I am in no way accepting his relevant conduct ideas. I mean, I understand what's being said here and I understand what the plea is about, but I am not understanding — I do not agree to his relevant conduct ideas." (Dk. 170, p. 38). In the defendant's petition to enter plea of guilty, which the defendant signed as having been read and understood by him and discussed with his counsel, there appears:
In determining the guideline range, whether to depart, and the sentence to impose, the Court may take into account all relevant criminal conduct, which may include counts to which I have not pled guilty or been convicted and take into account background characteristics, unless otherwise prohibited by law. . . .
I hope to receive leniency, but I am prepared to accept any punishment permitted by law which the Court sees fit to impose.
(Dk. 165, ¶ 16, p. 4).
Based upon the extended colloquy between the court and the defendant prior to the court's acceptance of his guilty pleas, it is very difficult for the court to imagine that Russell's pleas were anything but the product of a voluntary, knowing and intelligent waiver of his constitutional rights. See Williams, 118 F.3d at 718. The defendant's post-plea remorse does not render his plea involuntary. See Jones, 168 F.3d at 1220 n. 1 ("The notion that a defendant may withdraw his guilty plea because he later feels that he made a poor decision has been flatly rejected by numerous courts"). At the change of plea hearing, the defendant told the court that no one had "predicted or promised to . . . [him] what the sentence would be in this case." (Dk. 170, p. 42). "`Solemn declarations in open court carry a strong presumption of verity.'" United States v. Estrada, 849 F.2d at 1306 (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Thus, "[a] defendant's statements at a plea hearing `should be regarded as conclusive [as to truth and accuracy] in the absence of a believable, valid reason justifying a departure from the apparent truth' of those statements." Id. (quoting Hedman v. United States, 527 F.2d 20, 22 (10th Cir. 1975)). In his most recent testimony, Russell offered no credible or valid reason for questioning the truthfulness of his earlier representations under oath. This factor weighs against Russell.
(7) Waste of judicial resources:
"[S]ome waste of judicial resources from a plea withdrawal is inevitable." Carr, 80 F.3d at 421. Besides the time and effort expended in this and prior proceedings that would have to be repeated, a presentence report has already been prepared and disclosed to the parties. Though the waste here is not overwhelming, this factor still weighs against the defendant.
SUMMARY
Having weighed the evidence presented and then applied it to the factors relevant under Tenth Circuit precedent, the court concludes that the defendant has failed to demonstrate a fair and just reason for withdrawing his plea. The court further finds that Russell's pleas were the product of his knowing, intelligent and voluntary waiver of his constitutional rights. Finally, the court determines that defense counsel's purported estimation of sentence, error or not, does not amount to a constitutionally deficient performance.
IT IS THEREFORE ORDERED THAT the defendant's motion to withdraw his plea of guilty (Dk. 220) is denied.