Opinion
02 Cr. 729 (DLC)
November 25, 2003
Edward C. O'Callaghan, New York, NY, for the Government
Frank Handelman, Esq., New York, NY, for Defendant
OPINION AND ORDER
This Opinion addresses a motion to withdraw a guilty plea brought by a defendant who has learned from the Pre-Sentence Report ("PSR") that his sentencing guidelines range substantially exceeds the range to which he stipulated in a plea agreement entered into with the Government. The change is as a result of the Probation Department's conclusion that the defendant is a career offender. For the following reasons, the motion to withdraw the plea is denied.
On June 5, 2002, defendant Anthony Guidice ("Guidice") was charged in a four count Indictment. The third count, to which Guidice has pleaded guilty, charged that Guidice participated in a conspiracy to commit extortion in violation of Title 18, United States Code, Section 1951. Guidice's role in the extortion scheme was to visit the victim's place of business and threaten the victim in an effort to collect a debt that the victim owed to Guidice's co-defendants.
In a January 13, 2002 plea agreement ("Agreement"), Guidice agreed to plead guilty to Count Three of the Indictment. In consideration of that plea, the Government agreed it would not further prosecute him for crimes of extortion occurring between December 2000 and April 2002, and at the time of sentence would move to dismiss the open counts in the Indictment against him. The Agreement also contained a stipulated guidelines range of 37 to 46 months, based on an offense level of 15 and a criminal history category of V. It included the standard language with respect to the calculation of the defendant's criminal history, to wit, that the Agreement was based "upon the information now available to [the United States Attorney's] Office (including representations made by the defense)." The Agreement concluded that three criminal history points were attributable to a May 1, 1992 conviction for "Assault in the Second Degree" ("1992 Conviction"), for which the defendant had received a sentence of two to six years in prison.
Section 120.05 of the New York Penal Law defines the crime of assault in the second degree. Under the most relevant provisions of Section 120.05, a person is guilty of assault in the second degree when:
(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
(2) With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or
. . . .
(4) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
N.Y. Penal Law § 120.05 (2003).
The Agreement also contained the standard language that the Agreement bound neither the Probation Department nor the Court. It added that "it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Stipulated Sentencing Guidelines Range of 37 to 46 months."
Guidice entered his plea on January 16, 2003. At the plea, he acknowledged again that he understood that the Agreement's calculation of the guidelines range was not binding on the Court and that he could not withdraw his plea even if his sentence were different from what was calculated in the Agreement. He also acknowledged understanding that the Court would be undertaking its own independent calculation of his guidelines range after it received the PSR.
The Probation Department determined that the 1992 Conviction was a "crime of violence" as defined in the sentencing guidelines, and that when the conviction was considered along with a 1997 federal bank robbery conviction and the plea before this Court to the extortion conspiracy (both of which were also reflected in the Agreement), Guidice was a career offender under Section 4B1.1 of the sentencing guidelines. The PSR calculated a guidelines range of 151 to 188 months in prison.
The PSR describes the 1992 Conviction as one for "assault with intent to cause serious physical injury." Section 4B1.2(a) of the sentencing guidelines defines a crime of violence as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another . . ." U.S. Sentencing Guidelines Manual § 4B1.2(a) (2002). Application Note 1 explains that a crime of violence includes "aggravated assault." Id. at app. n. 1. It adds that other offenses are included as crimes of violence if the offense "has as an element the use, attempted use, or threatened use of physical force against the person of another. . . ." Id.
Through a letter of September 26, Guidice's counsel has made a motion to withdraw Guidice's plea. This follows unsuccessful efforts between the Government and Guidice to negotiate a modified plea agreement. Guidice does not assert his innocence, that the Government engaged in any misconduct, that the Government has violated the Agreement, or that the PSR's calculation of his guidelines range is in error. He does, however, urge that his due process rights were violated because he relied upon the miscalculation of his criminal history category in the Agreement in his decision to enter his plea.
Guidice's sentence had been adjourned to June 13, to permit the Probation Department to complete the PSR. The PSR was completed on May 21. The Government presented Guidice with a revised plea agreement dated July 2, that reflected Guidice's status as a career offender and permitted him to make downward departure motions. The revised agreement was rejected by Guidice. Guidice's health, and the PSR's determination that Guidice was a career offender, necessitated a further adjournment of the sentencing date to July 24. On July 24, Guidice made an oral motion to withdraw his plea. His written motion to withdraw his plea was originally scheduled to be due on August 29.
Discussion
Motions to withdraw guilty pleas before sentence are governed by Rule 32(e), Fed.R.Civ.P., which states that "the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Rule 32(e), Fed.R. Grim. P. See also United States v. Hyde, 117 S.Ct. 1630, 1631 (1997); United States v. Fernandez-Antonia, 278 F.3d 150, 155 (2d Cir. 2002). A defendant does not enjoy an unfettered right to withdraw his plea. Fernandez-Antonia, 278 F.3d at 155. In determining whether a "fair and just reason" exists to justify withdrawal of a guilty plea, the court should consider: "(1) the time lapse between the plea and the motion; and (2) whether the government would be prejudiced by a withdrawal of the plea." Id. The court should also consider whether the defendant's motion to withdraw his plea asserts his innocence. United States v. Karro, 257 F.3d 112, 117 (2d Cir. 2001). The defendant bears the burden of showing that valid grounds for withdrawal of the plea exist. United States v. Rodriguez, 968 F.2d 130, 141 (2d Cir. 1992). The fact that a defendant "has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed" is not sufficient to permit withdrawal of a plea. United States v. Grimes, 225 F.3d 254, 259 (2d Cir. 2000) (per curiam).
Where the Government breaches a plea agreement, the remedy is "either to permit the plea to be withdrawn or to order specific performance of the agreement." United States v. Palladino, 347 F.3d 29, 34 (2d Cir. 2003). The circumstances of each case must guide the choice between these two options. Id. An erroneous prediction of a defendant's sentence by an attorney, however, does not entitle the defendant to withdraw his sentence. See United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (per curiam) (defense counsel erroneously estimated guidelines range).
Guidice has not shown that his due process rights have been violated. He was fully advised at the time of his plea of the maximum sentence that could be imposed and that the Agreement was not binding on the Court. The Agreement itself made the same point. Guidice does not contend that he is innocent of the crime to which he pleaded guilty. While the Court assumes for purposes of this motion that the Government will not be prejudiced if the plea were vacated, that fact by itself is insufficient to permit Guidice to withdraw his plea. Fernandez-Antonia, 278 F.3d at 155.
In this case it appears that both defense counsel and the Government failed to consider the career offender provisions of the sentencing guidelines when negotiating the Agreement. The description of the 1992 Conviction in the Agreement as a conviction for assault in the second degree should have been sufficient to put both counsel on notice that it may be considered a crime of violence under the sentencing guidelines. Nonetheless, this error in calculation, in the absence of any claim of bad faith or breach of the Agreement by the Government, is insufficient by itself to allow withdrawal of a plea when the defendant was fully informed that the Agreement's calculation was not binding on the Court.
While the Government seeks to excuse the error by pointing out that the defendant had greater access to the underlying facts of the 1992 Conviction, it would appear that a simple comparison of the elements of the crime of assault in the second degree with the definition of a crime of violence in the sentencing guidelines should have sufficed to put counsel on notice of the issue.
Thus, Guidice's change of heart in light of the PSR's calculation of his sentencing guideline's range is insufficient, by itself, to permit him to withdraw his plea. Any other ruling would improperly undermine the finality that should accompany the entry of a plea. A guilty plea is a "grave and solemn act" and should not be viewed as "merely tentative."Hyde, 520 U.S. at 677 (citation omitted).
Guidice is, however, free to make any motions for a downward departure that he believes are appropriate. Any such motion should be made by December 19. Opposition is due January 9, 2004. Sentence is scheduled for January 16, 2004, at 10 a.m. Conclusion
The motion by Anthony Guidice to withdraw his plea is denied.
SO ORDERED.