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United States v. Westberry

United States District Court, E.D. Kentucky, Central Division, Lexington

December 20, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
NAVARIUS SAVELL WESTBERRY, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE

         This matter is pending for consideration of Defendant Navarius Westberry's motion to withdraw his guilty plea. [Record No. 159] The motion will be denied for a number of reasons, including that: (i) Westberry had ample opportunity to consider the terms and conditions of the Plea Agreement offered by the government before he signed the document and entered a guilty plea; (ii) at the time Westberry entered his guilty plea he was not under duress, but fully aware of the consequences of his actions; (iii) Westberry's decision to plead guilty was deliberate, knowing and voluntary; (iv) Westberry's claim that he was under the influence and unable to understand his decision to enter a guilty plea is not supported by the record or the Court's observations of the defendant during the course of these proceedings; and (v) Westberry's current actions are a calculated attempt to avoid punishment for acknowledged crimes, and not the result of a legitimate claim innocence or any other reason that would justify the relief sought.

         In summary, when all relevant factors are considered, Westberry cannot establish a fair and just reason that would support withdrawal of his guilty plea.

         I.

         On December 17, 2015, an indictment was filed charging Westberry with: (1) conspiring to knowingly and intentionally distribute a mixture or substance containing a detectable amount of heroin and a mixture or substance containing a detectable amount of fentanyl in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (the amount of heroin attributable to Westberry and his alleged co-conspirators was more than 100 grams); (2) conspiring to knowingly and intentionally distributing a mixture or substance containing a detectable amount of fentanyl which resulted in the death of one individual (“C.B.”) in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846; and (3) conspiring to knowingly and intentionally distributing a mixture or substance containing a detectable amount of fentanyl, the use of which resulted in serious bodily injury to another individual (“A.S.”), in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. [Record No. 1]

         On August 15, 2016, Westberry signed a Plea Agreement and later pleaded guilty to Counts One and Two of the Indictment. [Record No. 103] Pursuant to the parties' agreement, the government stipulated that it would move to dismiss Count Three at the time of the sentencing hearing. [Id.] Westberry acknowledged that he and several co-defendants conspired to distribute heroin and a detectable amount of fentanyl, that he distributed the controlled substances himself, and that he provided the substances to others for distribution. [Id. at 2] One of Westberry's co-defendants confirmed that she purchased a controlled substance from a co-defendant and re-distributed that substance to C.B., who later died of a drug overdose. [Id. at 4] An autopsy determined that the cause of C.B.'s death was acute fentanyl toxicity. [Id.] In addition to acknowledging that the substance distributed caused C.B.'s death, Westberry agreed that the total amount of heroin attributable to him and his co- conspirators was 700 to 1, 000 grams and that the amount of fentanyl attributable to him was at least 50 grams. [Id.] Despite these admissions, Westberry maintained that, at the time of distribution, he believed that the substance he was selling was heroin rather than fentanyl. [Id. at 4-5]

         Westberry initially sought to enter a guilty plea in June 2016, but declined to do so during the hearing held on June 24, 2016.[1] At the time of this hearing, Westberry claimed to be “suffering from anxiety and [was] not ready to proceed . . . .” [Record No. 87] In addition to advising counsel that a competency evaluation could be requested if warranted, the Court granted the defendant's oral motion to continue the trial of the matter from July 12, 2016, until August 15, 2016. As the minute order from the June 24th hearing reflects, the Court delayed the trial at counsel's request to provide additional time for trial preparation and to allow the defendant additional time to consider the terms of the Plea Agreement. [Record No. 87] Further, the United States Marshal was directed to “maintain the defendant [at the] Fayette County Detention Center so that he has reasonable access to counsel.” [Id.]

         Approximately thirty days later, Westberry's counsel filed a second motion for re-arraignment, indicating that the defendant again wished to enter a guilty plea to Counts 1 and 2 of the Indictment. [Record No. 99] A hearing on the defendant's motion was then scheduled for August 15, 2016, and the trial scheduled to begin on that date was canceled. [Record No. 100] Thus, by the time of the second motion, Westberry had been moved to Lexington so that he could consult more effectively with counsel. And as noted above, he had been given more than one month to consider the terms and conditions of the Plea Agreement proposed by the United States.

         Much of the parties' negotiations seem to have centered on a provision of the Plea Agreement under which the government agreed that, in exchange for a guilty plea, it would not seek to enhance Westberry's punishment by filing a notice under 21 U.S.C. § 851.

         Paragraph 4 of the Plea Agreement provides:

4. The United States agrees not to seek enhanced statutory punishments based on the Defendant's prior drug felony conviction and will not file a notice pursuant to 21 U.S.C. § 851 if the Defendant enters a guilty plea pursuant to the terms of this agreement. This means that the Defendant will face the possibility of life imprisonment for Count 2 but not a sentence of mandatory life imprisonment that would result if the United States sought an enhanced punishment for Count 2. The statutory punishment for Count 1 is imprisonment for not less than 5 years nor more than 40 years, a fine of not more than $5, 000, 000, and a term of supervised release of not less than 4 years. The statutory punishment for Count 2 is imprisonment for not less than 20 years and not more than life imprisonment, a fine of not more than $1, 000, 000, and a term of supervised release of not less than 3 years. A mandatory special assessment of $200 applies, and the Defendant will pay this $200.00 assessment to the U.S. District Court at the time of the sentencing hearing.

[Record No. 103] In paragrap. 5, the parties jointly made non-binding recommendations to the Court regarding: (i) the base offense levels for Counts 1 and 2; (ii) a three-level increase in the defendant's offense level calculation based on his role as a manager or supervisor of the criminal activity; and (iii) a possible three-level reduction of the defendants offense level for acceptance of responsibility. [Id.]

         In response to questions from the Court, Westberry explained during the August 15, 2016, hearing that he has completed some college, graduated from high school, and was able to read and write. [Record No. 109 at 4-5] He also affirmed that he had discussed the case and the Plea Agreement with his attorney, was satisfied with her advice and representation, and that he fully understood the terms of the agreement. [Id. at 9-10]. The Court explained the consequences of pleading guilty, and Westberry confirmed that he understood those consequences. [Id. at 24] The Court also discussed the nature of the charges and Westberry agreed that there was a factual basis to support the defendant's guilty plea. [Id.]

         In relevant part, Westberry acknowledged that he then understood that the substance that he was distributing contained fentanyl, although he continue to assert that he had been unaware of that fact at the time of distribution. [Id. at 28] Additionally, although Westberry did not know C.B., he stated that he understood that the substance that he and his co-conspirators distributed resulted in his death. [Id. at 29] At the conclusion of this hearing, Westberry confirmed that the factual basis for the charges as outlined in the Plea Agreement was true and correct and that he was entering a guilty plea because he actually was guilty of the charges.[2] [Id. at 30]

         One week later, Westberry's attorney filed a motion to withdraw as counsel in the case. [Record No. 105] Perlman's motion stated that she had difficulty communicating with Westberry due to his reliance on “external entities” and that, since the change-of-plea hearing, he had challenged her actions as counsel and challenged the validity of the guilty plea. [Id.] During the December 19, 2016, hearing, Westberry introduced two letters from attorney Perlman in which she discusses the defendant's desire to withdraw his guilty plea and her subsequent motion to withdraw as counsel in the case. Although undated, the first letter appears to have been prepared after Westberry entered his guilty plea (August 15, 2016), but before the motion to withdraw was filed (August 22, 2016). In relevant part, the letter states:

Based on your telephone call this morning, it is my understanding that you want to withdraw your guilty plea and hold some sort of hearing regarding the medical testimony as to what killed [C.B.]
I am enclosing the autopsy reports. There are two toxicology reports. One is blood, one is urine. The blood test shows that ONLY fentanyl was present in [C.B.'s] blood. When fentanyl is processed through the body's elimination system and into urine, it breaks down into metabolites. These metabolites which began as fentanyl ingested, break down into the elements of fentanyl - opiates - as they go through the human body's systems.
There is nothing else in the blood to break down into opiates in the urine. There were no other opiates in the blood. Only fentanyl. Fentanyl alone transformed into its chemical elements: opiate metabolites.
This is why I did not hire a medical expert.
I questioned the prosecutor about [C.B.'s] mother's statements at the press conference. The quote in the newspaper is: “His mother, [J.R.], said her son had taken painkillers to deal with a degenerative back disease, but she didn't know he was using heroin.” The prosecutor said that [C.B.] “got addicted to opiates, supposedly due to his back, but switched to heroin, likely because it was cheaper and more readily available.” There were no painkillers in [C.B.'s] autopsy results.
I do not see any legal grounds for a withdrawal of your guilty plea. I do not see any legal grounds for your demand for an “evidentiary hearing.” If you do continue to want one or both of these things, I believe our communications will have suffered a complete breakdown and I wouldn't think I could continue to represent you. I hesitate to file a motion to withdraw because I do not think it would be a popular decision with the judge or the prosecutor and I know that another attorney would give you the same advice I have given. However, I will wait to hear from you.

[Id., Exhibit 4]

         Although no documents were introduced regarding Perlman's later conversations with Westberry between the date of the above letter and August 22, 2016, further information is outlined in counsel's letter of August 24, 2016. Through this letter, Perlman apparently advised Westberry of the following:

I filed a motion to withdraw as your attorney which will be heard on Monday, August 29 at 9 a.m.
The evidentiary hearing the NLPA is talking about is a hearing at sentencing.
These sentencing hearings are held IF there are facts that have not been proven by either a plea agreement or a conviction.
Your plea agreement proved the fact of the overdose by your admission.
The only way to challenge that medical fact is for you to withdraw your guilty plea and ask for a trial.
The U.S. is not going to be willing to allow you to plead guilty to these offenses without your agreement that the medical proof supports the plea.
By the way, the medical proof does not support it.
Your reference to a nurse saying the levels of fentanyl in Mr. Brewer's blood stream would be based on long-term use is of course logical. He was an addict. And he died from ...

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