Opinion
No. MO-00-CR-146
February 10, 2001
Order Denying Defendant Motion to Withdraw Guilty Plea
Before this Court is the Defendant's Motion to Withdraw Plea. After due consideration of the facts and the law, the Court is of the opinion that the Defendant's Motion should be DENIED.
PROCEDURAL HISTORY
Defendant Scott Douglas Fuller was indicted by information on October 17, 2000. The indictment contains two counts. Count One alleges that Defendant was in possession of a firearm while having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Count Two alleges that Defendant knowingly received and possessed a firearm that was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). Defendant entered into a plea agreement on October 17, 2000. Under the agreement, in exchange for Defendant pleading guilty to Count One, the Government would recommend a three level departure under the sentencing guidelines and would dismiss the remaining count of the Information. Defendant, however, filed a Motion to Withdraw Plea on November 15, 2000. Defendant states additional grounds supporting his Motion in his Supplemental Motion to Withdraw Plea of Guilt filed January 29, 2001.
DISCUSSION
FED. R. CRIM. P. 32(e) states, in relevant part:
If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is impose, the court may permit the plea to be withdrawn if the defendant show any fair and just reason.
Though Rule 32(e) is to be construed liberally, a defendant does not enjoy an absolute right to withdraw a guilty plea. United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996). In addition, the burden of establishing a fair and just reason for allowing the withdrawal of a guilty plea falls upon the defendant. Id. In determining whether the defendant has shown any fair and just reason to allow withdrawal of his plea, the Court considers several factors: (1) whether the defendant asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed filing the motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowingly and voluntarily made; and (7) whether withdrawal would waste judicial resources. Id.; United States v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998) (reiterating and applying these seven factors). No single factor or combination of factors is dispositive. Still, 102 F.3d at 124. Rather, the Court makes its determination based on the totality of the circumstances. Id.
An examination of these factors counsels against allowing the Defendant to withdraw his plea. Defendant asserts several reasons that the Court should allow him to withdraw his plea including the government's failure to recommend a three level departure as promised under the plea agreement and the defendant's ignorance as to who might or might not testify for or against him at trial. The Court finds these proffered reasons unpersuasive. The Court also notes that Defendant's plea was knowingly and voluntarily made. The Court took extensive steps to comply with the stricture of FED. R. CRIM. P. 11 in order to ensure that Defendant had all the relevant information prior to entering his plea. Cf. 87 F.3d 695, 702 (5th Cir.) (examining how the district court's compliance or non-compliance with Rule 11 may affect a defendant's decision to plead guilty in order to determine whether to allow defendant to withdraw his plea under Rule 32(e)). Most significantly, the Court is cognizant of the serious allegations that Defendant has taken actions to intimidate witnesses into changing their testimony. In light of these facts, the Court finds that the Defendant fails to carrying his burden under Rule 32(e).
CONCLUSION
By separate order the Court has granted Defendant's Motion to Allow Attorney to Withdraw as Counsel and to Appoint Substitute Counsel. In order to allow Defendant the opportunity to revisit this issue with his new counsel, it is therefore ORDERED that Defendant's Motion be DENIED without prejudice.