Opinion
S6 03 CR 1238 (KMW), S1 05 CR 0116 (KMW).
May 21, 2008
Opinion and Order
On September 15, 2005, Defendant Radcliffe Barnes pleaded guilty to, inter alia, participating in a conspiracy to distribute at least 100 kilograms of marijuana. On March 31, 2008, after carefully reviewing the sentencing submissions from both the Government and Defendant, the Court found by a preponderance of the evidence that (1) Defendant was a leader or organizer of the drug conspiracy to which he pleaded guilty; and (2) at least 30,000 kilograms of marijuana is attributable to Defendant. See March 31, 2008 Order (D.E. 174).
By motion dated April 16, 2008, Defendant moves (1) to withdraw his guilty plea, or (2) in the alternative, to hold an evidentiary hearing to determine Defendant's leadership role and the drug weight that should be attributed to him during sentencing. For the reasons stated below, Defendant's motion is DENIED.
Defendant also argues that the Court cannot hold Defendant responsible for at least 30,000 kilograms of marijuana, because this drug amount subjects him to a sentencing range above the statutory maximum. See United States v. Thomas, 274 F.3d 655, 663 (2d Cir. 2001) ("[I]t is error for a court to `enhance' a defendant's sentence above a statutory maximum based on drug quantity if the Government has not charged drug quantity in the indictment and proved it to a jury beyond a reasonable doubt."). This argument is without merit. Defendant's guilty plea subjects him to a statutory mandatory minimum term of five years imprisonment and a statutory maximum term of forty years imprisonment. The Court's drug weight finding does not "trigger" a higher statutory mandatory minimum or statutory maximum sentence for Defendant. See United States v. Vaughn, 430 F.3d 518, 528 (2d. Cir. 2005). Although the Court will "calculate the applicable Guidelines range based on [its finding that 30,000 kilograms of marijuana is attributable to Defendant]," the Court will "sentence the defendant within the statutory sentencing range authorized by" Defendant's guilty plea. Id. This procedure does "not violate the Sixth Amendment."Id.
I. Motion to Withdraw Guilty Plea
"[A] defendant who seeks to withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for withdrawal." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (internal quotation omitted). Because Defendant has not met this burden, the Court denies his motion to withdraw his guilty plea.
A defendant may withdraw a guilty plea if he or she "can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B). In determining whether a "fair and just" reason exists, the Court considers, inter alia, (1) "whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea" (the "legal innocence factor"); (2) "the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just)" (the "elapsed time factor"); and (3) "whether the government would be prejudiced by a withdrawal of the plea" (the "prejudice factor"). United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004). The Court may also consider whether the defendant has "raise[d] a significant question about the voluntariness of the original plea" (the "voluntariness factor"). United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997).
Defendant has not demonstrated a "fair and just" reason to withdraw his guilty plea pursuant to these factors.
A. Legal Innocence
First, the legal innocence factor weighs against Defendant's motion, because he has not asserted that he is legally innocent of the crime for which he pleaded guilty. See Def. Mem. of Law 5-6.
The legal innocence factor requires that the Court "be convinced that there are legally cognizable defenses to the crime charged to exculpate the defendant." United States v. Fernandez, 734 F. Supp. 599, 604 (S.D.N.Y. 1990). Defendant concedes that he participated in a conspiracy to distribute at least 100 kilograms of marijuana. Although Defendant alleges that he was not a leader or organizer of the conspiracy and that he is not responsible for distributing at least 30,000 kilograms of marijuana (the "relevant conduct"), this relevant conduct is not an element of the crime to which he pleaded guilty. Rather, it relates only to the "severity of the sentence to which he is exposed." United States v. Rosales, 494 F. Supp. 2d 522, 527 (W.D. Tex. 2007) (internal quotations omitted). Because Defendant does not allege "innocence of the underlying crime," his motion "cannot be construed to be an assertion of innocence." Id. 526-27 (internal quotations omitted).
To the extent that Defendant argues that his alleged innocence of the relevant conduct nonetheless presents a "fair and just reason" for allowing him to withdraw his plea, this argument is unpersuasive. Although Defendant pleaded guilty, he still had the opportunity to challenge the Government's claims regarding his leadership role and the drug amount attributable to him. In contrast, a defendant who is innocent of the crime for which he pleaded guilty has no opportunity to challenge the Government's allegations unless the Court permits him to withdraw his plea.See United States v. Moya, 730 F. Supp. 35, 41 (N.D. Tex. 1990) (holding that a defendant who claimed he was not responsible for the drug amount alleged in his presentence report had not alleged legal innocence, and noting that the defendant would have the opportunity to attack the accuracy of the presentence report prior to sentencing); cf. United States v. Lopez, 385 F.3d 245, 254 (2d Cir. 2004) ("[G]reater injustice is done to a defendant who may actually be innocent yet is denied a trial than to one who admits his guilt but insists on a trial."). Because Defendant has had an opportunity to be heard regarding his claim that he is innocent of the relevant conduct alleged by the Government, there is no fair and just reason to permit him to withdraw his plea.
Accordingly, the Court concludes that the legal innocence factor does not support Defendant's motion to withdraw his guilty plea.
B. Elapsed Time
The elapsed time factor also militates against granting Defendant's motion, because Defendant waited more than two and one half years before seeking to withdraw his guilty plea. See United States v. Fernandez, 734 F. Supp. 599, 603 (S.D.N.Y. 1990) ("Four months is simply too long a period to support a claim that the plea was made in haste or confusion.").
Defendant argues that his delay does not "cast suspicion" on his reason for seeking to withdraw his guilty plea, because he had no reason to withdraw his guilty plea until the Court's March 31, 2008 order finding Defendant responsible for at least 30,000 kilograms of marijuana. However, the fact that Defendant sought to withdraw his guilty plea only after the Court made its drug weight finding suggests that he was "merely [trying] to obtain a second chance after learning his [likely] sentence," which is an "improper motive." Fernandez, 734 F. Supp. at 602; see also Gonzalez, 970 F.2d at 1100 ("[T]he fact that a defendant has a change of heart prompted by his reevaluation of . . . the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea."); United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) ("Defendants may not plead guilty in order to test whether they will get an acceptably lenient sentence."). Thus, the elapsed time factor strongly weighs against permitting Defendant to withdraw his guilty plea.
C. Prejudice
The prejudice factor likewise weighs against permitting Defendant to withdraw his guilty plea. The Government would be prejudiced by Defendant's withdrawal of his guilty plea because it has already spent significant resources on the trial of a co-defendant. The Government would need to duplicate these efforts if it were now to bring Defendant to trial.
D. Voluntariness
Finally, the voluntariness factor also weighs against granting Defendant's motion, because Defendant produced no credible evidence that his guilty plea was involuntary.
Defendant argues that his guilty plea was not "knowing" because he did not understand that the Court could hold him responsible for at least 30,000 kilograms of marijuana. The Court finds this allegation incredible. First, Defendant has had notice since June 2006 that the Government was seeking to hold him accountable for this drug weight, but he sought to withdraw his plea only after the Court made its factual finding for purposes of sentencing. Second, the plea agreement clearly stated that Defendant faced a maximum term of imprisonment of forty years, and that "[n]o promises or understanding exist between [the Government] and the defendant with respect to the application of th[e] Guidelines to [Defendant's] case." See Plea Agreement at 1-2. The plea agreement also clearly stated that "the sentence to be imposed upon the defendant is determined solely by the Court" and that "the defendant will have no right to withdraw his plea of guilty based upon the sentence imposed by the Court." Id. Defendant stated during his plea allocution that he understood "the range of penalties including the maximum sentence to which [he is] potentially subjecting [himself]," and that he discussed with his attorney "how the Sentencing Commission guidelines" might inform his sentence. Tr. at 12-13. The Court therefore finds that Defendant understood the terms of his plea agreement and that the voluntariness factor does not support allowing Defendant to withdraw his plea.
Defendant also argues that he should be permitted to withdraw his guilty plea because he did not understand his right to have a jury, rather than a judge, find the drug quantity attributable to him at sentencing. This argument misstates the law. Even if Defendant had a jury trial, the Court would still sentence him pursuant to the drug amount the Court found attributable to him by a preponderance of the evidence. See United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005) ("[D]istrict courts may find facts relevant to sentencing by a preponderance of the evidence even where the jury acquitted the defendant of that conduct. . . .").
Accordingly, because none of the above factors supports Defendant's motion, the Court denies Defendant's request to withdraw his guilty plea.
II. Motion for an Evidentiary Hearing
Defendant argues that the Court should grant him an evidentiary hearing before making findings about his leadership role and the drug weight attributable to him. "Decisions as to what types of procedure are needed [to resolve sentencing disputes] lie within the discretion of the sentencing court. . . ." See United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996). The Court concludes that an evidentiary hearing in this case is not warranted.
"The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes." Slevin, 106 F.3d at 1091. Rather, "[a]ll that is required is that the court `afford the defendant some opportunity to rebut the Government's allegations.'" Id. (quoting United States v. Eisen, 974 F.2d 246, 269 (2d Cir. 1992)). "Written statements of counsel or affidavits of witnesses may be adequate under many circumstances." Commentary to U.S.S.G. § 6A1.3.
The Court provided Defendant with ample opportunity to rebut the Government's allegations regarding the drug weight attributable to him and his leadership role. Defendant submitted written arguments, testimony from other proceedings, and an expert report in support of his claims. The Court did not find Defendant's allegations credible, and therefore concluded that an evidentiary hearing was not necessary.
Defendant argues that the Court should hold an evidentiary hearing because (1) the Court relied upon hearsay evidence; and (2) the Court relied upon evidence adduced in the trial of his co-defendant. These arguments are unconvincing.
The Court "is free to consider hearsay evidence" during sentencing, United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994), and it is "under no duty to conduct a full-blown evidentiary hearing" simply because it relies on "contested hearsay testimony." United States v. Prescott, 920 F.2d 139, 144 (2d Cir. 1990); see also Williams v. Oklahoma, 358 U.S. 576, 584 (1959) ("[O]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court. . . ."). The Government's hearsay evidence was credible and consistent. Under these circumstances, no evidentiary hearing is necessary. See March 31, 2008 Order 3-7.
Likewise, "information from other proceedings may be relied upon at sentencing `so long as the defendant ha[s] an opportunity to respond in order that the court not rely on misinformation.'" United States v. Sisti, 91 F.3d 305, 312 (2d Cir. 1996) (quotingUnited States v. Concepcion, 983 F.2d 369, 387-88 (2d Cir. 1992)). Both sides cited testimony from the trial of Defendant's co-defendant, and Defendant had the opportunity to respond to the Government's submissions. Because the undersigned presided over the co-defendant's trial, the Court is well-situated to make credibility determinations regarding this testimony without the aid of a hearing. See United States v. Carvajal, No. 04 Cr. 222, 2005 WL 476125, at *3 (S.D.N.Y. Feb. 22, 2005) (finding that an evidentiary hearing was not necessary because the Court's "analysis was facilitated by [the sentencing judge] having presided over the trial"). Therefore, the Court concludes that no hearing is necessary.
Defendant also argues that the Court should reevaluate its findings because its March 31, 2008 order misconstrued the evidence regarding Defendant's leadership role and the drug weight attributable to him. The Court finds that Defendant's alternate interpretation of the evidence is not credible. However, the Court corrects one error on page 5 of the March 31, 2008 order. The order stated that Christopher Pryce said that Defendant "has to watch himself." This statement was made by Glenford Henry. The Court's reasoning is unaffected by this correction. Thus, for the reasons stated in its March 31, 2008 order, the Court finds that (1) Defendant was a leader or organizer of the drug conspiracy to which he pleaded guilty; and (2) at least 30,000 kilograms of marijuana is attributable to Defendant. See March 31, 2008 Order 3-8.
III. Conclusion
For the reasons stated above, Defendant's motion (1) to withdraw his guilty plea, and (2) in the alternative, to hold an evidentiary hearing, is DENIED. Sentencing for Defendant will be held on Tuesday, June 10, 2008 at 1:00 p.m.
SO ORDERED