United States District Court, Eastern District of Kentucky, Central Division, Lexington
Danny C. Reeves, United States District Judge.
Prior to sentencing, Defendant Norshawn Michael Duplessis’ moved the Court for permission to withdraw his guilty plea to Count Two of the Indictment. [Record No. 49] As noted during the hearing held on this date, this Memorandum Opinion provides further explanation for the denial of that motion.
On May 2, 2014, a three count Indictment was filed charging Duplessis with: (1) possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Record No. 7] Pursuant to the defendant’s request, a hearing was scheduled for July 7, 2014, for the purpose of allowing Duplessis to enter a guilty plea. Prior to the hearing, Duplessis signed a written Plea Agreement with the government regarding Counts One and Two of the Indictment. The parties agreed that Count Three would be dismissed at the time of sentencing. [07/07/14 Transcript, p. 3] However, during the July 7th hearing, Duplessis contested the factual basis for Count Two. Specifically, he asserted that he did not know that the gun was in his apartment. [Id., pp. 12–13] As a result, the Court accepted Duplessis’ guilty plea to Count One and the matter was scheduled for trial on Monday, September 8, 2014, regarding Count Two. [Record No. 34]
However, on Friday, September 5, 2014, Duplessis moved the Court to be re-arraigned on Count Two. [Record No. 41] On September 8, 2014, Duplessis pleaded guilty to Count Two pursuant to a written Plea Agreement. [Record No. 44] During the second plea hearing, the Court again confirmed that Duplessis was fully competent and able to enter a guilty plea, reviewed the potential penalties for Count Two, and discussed the waiver provision contained in paragraph 8 of the second Plea Agreement in compliance with Rule 11 of the Federal Rules of Criminal Procedure. [Id., pp. 3–4] Additionally, Duplessis confirmed the accuracy of the factual basis contained in the Plea Agreement regarding Count Two. [Id., pp. 7–8] Duplessis clearly understood the nature of the charge against him, the consequences of his guilty plea, and the elements of the offense that the United States would be required to prove if the matter proceeded to trial. Thereafter, a sentencing hearing was scheduled for December 17, 2014. [Record No. 46]
The Presentence Investigation Report (“PSR”) prepared by the United States Probation Office was disclosed to the parties on November 12, 2014. [Record No. 49, p. 2] As outlined in Duplessis’ written Plea Agreement and the PSR, the statutory minimum term of imprisonment for Count Two is five years under 18 U.S.C. § 924(c)(1)(A)(i). [PSR, p. 12] On November 25, 2014, the Court received a hand-written letter dated October 11, 2014, from the defendant. [Record No. 48] In the letter, Duplessis complained of the assistance he was receiving from his counsel and, alternatively, indicated that he wished to withdraw his prior guilty plea to Count Two.
On December 2, 2014, Duplessis’ counsel moved the Court to allow the defendant to withdraw his guilty plea to Count Two. [Record No. 49] Duplessis asserts that, after performing further research, he should not have been charged with Count Two because the gun was not actually used for selling drugs and he was not aware that it was in his apartment. [Id., p. 2] A hearing on this motion was scheduled for December 17, 2014. [Record No. 50] Duplessis did not testify during the hearing.
“A defendant does not have an absolute right to withdraw a guilty plea.” United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006). Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a district court may permit a defendant to withdraw a guilty plea, before a sentence has been imposed, if he can establish a “fair and just reason” for doing so.The rule is intended to “allow a hastily entered plea made with unsure heart and confused mind to be undone, not ‘to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty.’” United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991) (citing United States v. Carr, 740 F.2d 339, 345 (5th Cir. 1984)).
The defendant has the burden of proving that withdrawal of a guilty plea is justified. Ellis, 470 F.3d at 281. Seven factors are reviewed under Rule 11(d)’s standard, including:
(1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant’s nature and background; (6) the degree to which the defendant has had prior experience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted.
United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), superseded by guidelines amendments on other grounds, U.S.S.G. § 3B1.1. “These factors represent ‘a general, nonexclusive list and no one factors is controlling.’” United States v. Goddard, 638 F.3d 490, 494 (6th Cir. 2001) (quoting United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996)).
1. The Amount of Time That Elapsed Between Entry of the Guilty Plea and the Defendant’s Motion to Withdraw
Duplessis entered into a written Plea Agreement to Count Two of the Indictment on September 8, 2014. The motion to withdraw his plea was filed by his attorney on December 2, 2014. Thus, a total of eighty-four days elapsed between the guilty plea and the motion to withdraw. While the Sixth Circuit has upheld the denial of a motion to withdraw a guilty plea when the period of time between the motion and the plea is as little as thirty-five days, and has cited with approval other circuits that have denied similar motions when less intervening time is involved, this time period should be examined in light of all of the other factors to be considered as well as the facts known to the defendant at the time the plea is entered and those discovered which allegedly lead to the Rule 11 motion. See United States v. Spencer, 836 F.2d 236 (6th Cir. 1987) (motion to withdraw guilty plea denied where time period between the entry of plea and motion to withdraw was 35 days) and Carr, 740 F.2d 339 (motion to withdraw guilty plea ...