Opinion
Cause No. 1:01-CR-55
July 16, 2002
ORDER
This matter is before the Court on Defendant Vincent Stephens's ("Stephens") "Motion to Withdraw Guilty Plea" filed in this Court on May 6, 2002. The United States filed an "Opposition to the Defendant's Motion to Withdraw Guilty Plea" on May 28, 2002 and Defendant indicated he does not intend to reply to the Government's Opposition. For the following reasons, Stephens's motion to withdraw his guilty plea will be DENIED.
FACTUAL BACKGROUND
On August 22, 2001, Stephens was indicted on the charge of possessing with the intent to distribute cocaine base crack in violation of 21 U.S.C. § 841(a)(1). On November 21, 2001, Defendant entered a plea of guilty to the charge pursuant to a Plea Agreement. The Defendant's Plea Agreement did not contain any provision that required him to cooperate with the Government and did not promise any recommendation of a sentencing departure for substantial assistance to authorities pursuant to U.S.S.G. § 5K1.1. In fact, Stephens had refused to give the Government assistance prior to the filing of the Plea Agreement and entering of the guilty plea.
Stephens alleges that, at the plea hearing on November 21, 2000, his lawyer informed Stephens that if Stephens provided assistance to the Government, he may possibly receive an adjustment to his sentence. At no time during the plea hearing, or any time thereafter, did the United States offer Stephens a downward departure pursuant to U.S.S.G. § 5K1.1 if he provided substantial assistance. Also at the plea hearing, Stephens acknowledged (1) that he was satisfied with his lawyer's representation; (2) that he understood the terms of the Plea Agreement; (3) that no promises had been made to him except for those contained in the Plea Agreement; and (4) that if his sentence was more severe than he expected, he was still bound by his plea and had no right to withdraw it.
On March 1, 2002, the Stephens provided information to the Government regarding criminal activity in the Fort Wayne area. However, Stephens is unwilling to testify against the target about whom he provided information. Moreover, the Government had already charged the target prior to debriefing Stephens.
On April 19, 2002, the parties came before this Court for a sentencing hearing. Stephens indicated in open court that he wishes to withdraw his guilty plea on the bases that (1) he lied when he admitted to the crime at the November 21, 2000 plea hearing, and (2) he had not received a departure for his assistance to the authorities. Thereafter, the Court granted Stephens leave to file the motion to withdraw the guilty plea now before the court.
DISCUSSION
According to the Federal Rules of Criminal Procedure, this Court can grant a motion to withdraw a guilty plea "if the defendant shows any fair and just reason." Fed.R.Crim.P. 32(e) (emphasis added). A criminal defendant does not have an absolute right to withdraw a guilty plea. Rather, the decision to allow him to do so rests within the discretion of this Court. See United States v. Underwood, 174 F.3d 850, 852 (7th Cir. 1999); United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994). Therefore, the burden is on Stephens to show sufficient justification for the Court to set aside his guilty plea.
Stephens has not met his burden. With regard to his first basis upon which to withdraw the guilty plea — that he lied at the plea hearing — Stephens did not raise that argument in his written motion to the Court. As a result, the Court assumes that Stephens has decided not to pursue that line of reasoning.
With respect to his second basis upon which to withdraw his guilty plea — that he did not receive a reduction in sentence for cooperating with the government — Stephens has failed to show that his cooperation with the government had any relation to the Plea Agreement whatsoever. Indeed, Stephens insisted that the Plea Agreement not require him to cooperate with the Government. Stephens expressly refused to provide information before the filing of the Plea Agreement and the entering of his guilty plea. He cannot now seek to repudiate the Plea Agreement on the basis that no substantial assistance departure language was in the Agreement.
Moreover, Stephens cannot now withdraw his guilty plea on the basis that he did not receive a departure for providing information after he had pled guilty. The Government made no promise in the Plea Agreement (or at any other time) that such cooperation after the plea would result in a sentencing departure. Indeed, Stephens elected to plead according to the terms of the Plea Agreement and defer his decision as to whether he would cooperate with the Government. After the plea, the Defendant could have elected not to talk with the Government, and the Government would have had no mechanism to force his cooperation. Similarly, if Stephens chose to cooperate, he did not have any assurance as to what, if anything, his cooperation would earn him with respect to sentencing reductions. Consequently, the failure to receive a sentence reduction for cooperation, when no such reduction was envisioned at the time of the plea, cannot establish a fair and just reason for the withdrawal of the plea.
Finally, at the plea hearing on November 21, 2001, Stephens acknowledged that if his sentence was more severe than he anticipated, that he would have no right to withdraw his guilty plea. Accordingly, he cannot now withdraw the plea on the basis that he has not received a sentencing departure under U.S.S.G. § 5K1.1. Stephens's motion to withdraw his guilty plea will be denied.
CONCLUSION
For the foregoing reasons, Stephens's "Motion to Withdraw Guilty Plea" filed on May 6, 2002, is hereby DENIED.