United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Marion Brown filed a motion to withdraw his guilty plea on
December 29, 2017. [Record No. 40] The Court orally denied
Brown's motion prior to sentencing him on January 12,
2018. This Memorandum Opinion and Order supplements the
Court's oral ruling.
federal grand jury returned an indictment on May 11, 2017,
charging Brown with three drug-trafficking offenses and one
firearms offense. [Record No. 7] The Court appointed counsel
for Brown under the Criminal Justice Act and scheduled a jury
trial for July 17, 2017. Brown subsequently retained counsel,
however, and moved to continue the trial. [Record No. 21]
That motion was granted and, following a subsequent request
to continue the trial, Brown filed a motion for rearraignment
on July 25, 2017. [Record No. 25]
pled guilty to Counts 2 and 4 of the indictment on July 28,
2017. [Record Nos. 27, 38');">38');">38');">38] Count 2 charged that he knowingly
and intentionally distributed fentanyl, the use of which
resulted in serious bodily injury to a victim, in violation
of 21 U.S.C. § 841(a)(1). Count 4 charged that he
possessed various specified firearms after having been
convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). Brown's sentencing hearing was originally
scheduled for November 17, 2017.
was detained at the Grayson County Detention Center following
entry of his guilty plea. He attempted to escape from that
facility on September 1, 2017. [Record No. 41-1] Following
the escape attempt, counsel visited Brown to discuss the
presentence report and other sentencing issues. [Record No. 39,
p. 6-7] The PSR indicated that Brown had lost
acceptance-of-responsibility credit based on the escape
attempt and recommended a Sentencing Guidelines range of life
imprisonment. At some point during the visit, Brown notified
counsel that he wished to withdraw his guilty plea.
Id. at p. 7. Counsel apparently advised him against
making such a motion but, after the visit, Brown returned a
signed email to counsel affirming that he wished to withdraw
his plea. Id. at pp. 7-8. Counsel again met with
Brown on November 16, 2017, to inquire whether he was certain
regarding the decision. Id. at p. 8. Brown again
affirmed that he wished to withdraw his plea. Id. at
the hearing on November 17, 2017, Brown's former
attorneys advised the Court of Brown's desire to withdraw
his guilty plea. Counsel was granted leave to withdraw and
Brown was appointed new counsel under the CJA. The sentencing
hearing was rescheduled for January 12, 2018. Brown filed the
instant motion on December 29, 2017.
initial matter, the Court recognizes that a defendant does
not have an absolute right to withdraw a guilty plea and
bears the burden of proving that he is entitled to do so.
United States v. Ellis, 470 F.3d 275, 280 (6th Cir.
2006) (citing United States v. Mader, 251 F.3d 1099,
1105 (6th Cir. 2001)). Rule 11(d)(2)(B) of the Federal Rules
of Criminal Procedure provides that a defendant may withdraw
a guilty plea after the court accepts the plea, but before it
imposes a sentence when the defendant can show a fair and
just reason for requesting the withdrawal. This rule is
designed so that a “hastily entered plea made with an
unsure heart and confused mind” may be undone.
United States v. Alexander, 948 F.2d 1002, 1004 (6th
Cir. 1991). However, the rule does not permit a defendant to
“make a tactical decision to enter a plea, wait several
weeks, and then obtain a withdrawal if he believes he made a
bad choice in pleading guilty.” Id.
Court considers a number of factors to determine whether the
defendant has shown a fair and just reason for requesting
withdrawal. United States v. Haygood, 549 F.3d 1049,
1052 (6th Cir. 2008). These factors include:
(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.
Id. (citing United States v. Bashara, 27
F.3d 1174, 1181 (6th Cir. 1994)). No one factor controls and
the relevance of each varies based on the
“circumstances surrounding the original entrance of the
plea as well as the motion to withdraw.” Id.
Brown's argument regarding the first two factors concerns
the conduct of his former attorneys. It is unclear precisely when
Brown first told his former attorneys that he wanted to
withdraw his guilty plea but, based on counsel's
undisputed statements during the November 17, 2017 hearing,
it was sometime after the PSR was issued on October 12, 2017.
[Record No. 39, p. 6-7] Brown's attorneys did not
immediately file a motion to withdraw. Instead, it appears
that Brown's attorneys ...