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United States v. Brown

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

January 12, 2018

MARION L. BROWN, III, Defendant.


          Danny C. Reeves United States District Judge.

         Defendant 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.


         A 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]

         Brown 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.

         Brown 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.[1] [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 p. 8.

         During 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.


         As an 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.

         The 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. (citations omitted).


         Much of Brown's argument regarding the first two factors concerns the conduct of his former attorneys.[2] 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 ...

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