Opinion
CASE NO. 8:10-CR-347-T-17AEP.
May 2, 2011
ORDER
This cause is before the Court on:
Dkt. 46 Motion to Withdraw Guilty Plea
Dkt. 52 Transcript
Dkt. 54 Response
Defendant Jonathan Laureano moves to withdraw Defendant's guilty plea. Defendant Laureano entered into a plea agreement on October 19, 2010 (Dkt. 19). A change of plea hearing was conducted by the assigned Magistrate Judge on November 10, 2010 (Dkt. 23). The Court accepted Defendant Laureano's plea and adjudicated Defendant Laureano guilty on December 7, 2010 (Dkt. 29). Defendant Laureano moved to withdraw his guilty plea on March 30, 2010.
Defendant Laureano moves to withdraw his plea because of Defendant's concerns as to his inability and/or unwillingness to cooperate, and because Defendant Laureano did not know that he would be classified as a Career Offender at the time Defendant Laureano entered into the plea agreement.
The Government opposes Defendant Laureano's Motion to Withdraw Guilty Plea.
I. Discussion A. Controlling Principles
A defendant may withdraw his plea if he can establish a "fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B). The Court considers the totality of the circumstances to determine whether a defendant has met this burden, including: 1) whether defendant has close assistance of counsel; 2) whether the plea was knowing and voluntary; 3) whether judicial resources would be conserved; and 4) whether the Government would be prejudiced if the defendant were allowed to withdraw his plea. See United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). Where a defendant has had close assistance of counsel and the plea is knowing and voluntary, the Court need not give considerable weight to the remaining factors. See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
To determine whether a plea is knowing and voluntary, the Court must establish that: 1) the guilty plea [is] free from coercion; 2) the defendant understand[s] the nature of the charges; and 3) the defendant knows . . . and understands the consequences of his guilty plea. See United States v. Mosely, 173 F.3d 1318, 1322 (11th Cir. 1999).
B. Discussion
The Court has examined the transcript of the change of plea hearing. The transcript shows that Defendant Laureano had close assistance of counsel, and that Defendant Laureano's plea was knowing and voluntary.
1) Cooperation
In Defendant's plea agreement, Paragraph 8 addresses cooperation. Defendant Laureano agreed to cooperate as provided in the plea agreement, and the United States Attorney agreed to consider whether Defendant's cooperation qualifies as "substantial assistance" in accordance with the policy of the United States Attorney for the Middle District of Florida, warranting the filing of a motion for downward departure at the time of sentencing or a motion for reduction of sentence after sentencing. The plea agreement explains that the determination as to whether substantial assistance has been provided rests solely with the United States Attorney for the Middle District of Florida, and Defendant agreed that Defendant cannot and will not challenge that determination by appeal, collateral attack or otherwise.
Defendant Laureano executed the plea agreement, and Defendant Laureano has not made any argument as to cooperation which would justify the withdrawal of Defendant's guilty plea.
2. Career Offender
Defendant Laureano has moved to withdraw Defendant's guilty plea because Defendant Laureano did not expect a guideline imprisonment range of 151 — 181 months, based on Defendant Laureano's classification as a Career Offender. Defendant Laureano argues that Defendant was misinformed and uninformed as to the penalties Defendant Laureano was facing at the time of sentencing.
The Court notes that the plea agreement recites the minimum and maximum penalties as to Count One of the indictment, possession with intent to distribute a quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1).
During the change of plea hearing, the assigned Magistrate Judge explained that at the time of sentencing the Court would determine an advisory guideline range for Defendant's case, and the Government agreed not to oppose Defendant's request to be sentenced at the low end of the guideline range (Dkt. 52, p. 15). The assigned Magistrate Judge further explained that the Government agreed to recommend a two-level downward adjustment for acceptance of responsibility, and, if applicable, to file a motion requesting an addition one-level downward adjustment for acceptance of responsibility. (Dkt. 52, p. 16). The assigned Magistrate Judge specifically explained that the plea agreement binds Defendant and the United States Attorney's Office for the Middle District of Florida, and does not bind the Court to accept any agreements, suggestions, or recommendations made in the plea agreement, and that the rejection of such recommendations would not permit the withdrawal of Defendant's plea agreement.
The assigned Magistrate Judge further explained that, while it is anticipated that Defendant and his counsel would attempt to predict and estimate how the advisory Sentencing Guidelines might apply in Defendant's case, before the United States Probation Office has prepared a presentence investigative report, no one could tell Defendant Laureano with any certainty what Defendant's advisory guideline range would be. (Dkt. 52, p. 24). The assigned Magistrate Judge explained that Defendant Laureano would have the opportunity to review the presentence investigative report prior to Defendant's sentencing hearing with counsel, and would be permitted to make any objections to the report that Defendant Laureano deems necessary. If Defendant's objections are unresolved prior to the sentencing hearing, Defendant's objections would be resolved at the sentencing hearing by the Court. Magistrate Judge Porcelli reiterated that no one could tell Defendant at the time of the change of plea hearing what Defendant's advisory guideline range would be, (Dkt. 52, pp. 24-25), and reminded Defendant Laureano that if the estimation was wrong, Defendant could not complain and ask to withdraw his plea. (Dkt. 52, p. 25). In response, Defendant Laureano stated under oath that Defendant Laureano understood. Defendant Laureano further acknowledged that Defendant understood that the guideline ranges are advisory and the Court could sentence Defendant Laureano to the maximum extent allows by law for Count One of the Indictment. (Dkt. 52, p. 25).
At the change of plea hearing, Defendant Laureano acknowledged that he understood the charge to which Defendant entered a plea Dkt. 52, p. 9), and denied that Defendant was forced or threatened to enter a guilty plea (Dkt. 52, pp. 20-21). Based on the Court's questions and explanations during the change of plea hearing, and Defendant's testimony at that hearing, the Court finds that Defendant Laureano was not misinformed or uninformed as to the consequences of Defendant's plea. That Defendant's estimate of the advisory guideline range of Defendant's sentence was wrong does not establish that Defendant's plea was not knowing and voluntary.
The Court finds that Defendant Laureano had close assistance of counsel and that Defendant Laureano's plea was knowing and voluntary. Defendant Laureano has not established a "fair and just reason" that would justify withdrawal of his plea. After consideration, the Court denies Defendant's Motion to Withdraw Guilty Plea. Accordingly, it is
ORDERED that Defendant's Motion to Withdraw Guilty Plea (Dkt. 46) is denied. DONE AND ORDERED in Chambers, in Tampa, Florida.