MARK W. BENNETT, District Judge.
I am called upon here to consider whether there is any merit to the defendant's contention that he should be allowed to withdraw his guilty plea on the grounds that he misunderstood the nature of the charged conspiracy and that he was unaware of the possible sentence he was facing at the time he entered his guilty plea.
On June 22, 2011, an Indictment was returned against defendant Isaiah Earl Thomas, charging him with conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). On September 22, 2011, defendant Thomas appeared before Chief United States Magistrate Judge Paul A. Zoss and entered a plea of guilty to Counts 1, 2 and 3 of the Indictment. On this same date, Judge Zoss filed a Report and Recommendation in which he recommends that defendant Thomas's guilty plea be accepted. No objections to Judge Zoss's Report and Recommendation were filed and I accepted defendant Thomas's plea of guilty that same day.
On March 7, 2012, defendant Thomas filed a Motion to Withdraw Guilty Plea (docket no. 36). In his motion, defendant Thomas argues he should be permitted to withdraw his guilty plea because he did not understand the nature of the conspiracy offense, and his counsel grossly underestimated his guideline sentencing range. On March 16, 2012, the prosecution filed a response to defendant Thomas's motion. Defendant Thomas did not file a reply brief.
Federal Rule of Criminal Procedure 11(d) provides as follows:
FED. R. CRIM. P. 11(d).
Pursuant to Rule 11(d), before the court imposes sentence, a defendant may move to withdraw his guilty plea if there is a "fair and just reason" for doing so. See FED. R. CRIM. P. 11(d)(2)(B). Accordingly, defendant Thomas is required to show "a fair and just reason for requesting the withdrawal." FED. R. CRIM. P. 11(d)(2)(B); see United States v. Held, 651 F.3d 850, 853 (8th Cir. 2011) ("After a guilty plea is accepted but before sentencing, a defendant may withdraw the plea if he establishes `a fair and just reason for requesting the withdrawal.'") (quoting United States v. Goodson, 569 F.3d 379, 382 (8th Cir. 2009)); United States v. Rollins, 552 F.3d 739, 741 (8th Cir. 2009) ("`The defendant bears the burden of showing fair and just grounds for withdrawal.'") (quoting United States v. Mugan, 441 F.3d 622, 630-31 (8th Cir. 2006)); United States v. Green, 521 F.3d 929, 932 (8th Cir. 2008) ("After his guilty plea is accepted but before sentencing, a defendant may be permitted to withdraw the plea for `a fair and just reason.'"); United States v. Taylor, 515 F.3d 845, 851 (8th Cir. 2008) ("If a defendant presents a `fair and just reason' for the withdrawal, the defendant may withdraw a guilty plea after the court's acceptance of the plea, but before sentencing."). In addition to considering whether there is a "fair and just reason" for the defendant to be allowed to withdraw his guilty plea, "[t]he district court may also consider any assertions of legal innocence, the amount of time between the plea and the motion to withdraw, and the prejudice to the government in granting the motion." Mugan, 441 F.3d at 630; accord Green, 521 F.3d at 932; United States v. Smith, 422 F.3d 715, 721 (8th Cir. 2005); United States v. Austin, 413 F.3d 856, 857 (8th Cir. 2005). "Guilty plea should not be `set aside lightly.'" Mugan, 441 F.3d at 631 (quoting United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997)). "`If the defendant fails to establish a fair and just reason for withdrawing the guilty plea, the trial court need not address the remaining considerations.'" Held, 651F.3d at 854 (quoting United States v. Nichols, 986 F.2d 1199, 1201 (8th Cir. 1993)); accord Smith, 422 F.3d at 724. Thus, although the "fair and just" standard is a liberal one, it does not create an automatic right to withdraw a plea. Held, 651 F.3d at 853; Smith, 422 F.3d at 723.
Thomas contends that there are fair and just reasons for permitting him to withdraw his guilty plea. Thomas asserts that he did not understand the nature of the conspiracy offense. Specifically, he asserts that he "does not feel that the evidence was fully explained to him or that the facts of this case establish that he was guilty of being in a conspiracy to distribute marijuana." Defendant's Br. at 2-3. Thomas also claims that his counsel, as well as the prosecutor, grossly underestimated his guideline sentencing range at the change of plea hearing, and "[i]t was not until after he pled guilty that the defendant was made aware of what he was actually facing in terms of the federal sentencing guidelines and the potential consequences of his plea." Defendant's Br. at 3-4. I will address each of these grounds in turn.
A guilty plea is only valid if it is given knowingly, voluntarily, and intelligently by the defendant. See United States v. Martinez-Cruz, 186 F.3d 1102, 1104 (8th Cir. 1999) (to be constitutionally valid, guilty plea must be knowing, voluntary, and intelligent; because guilty plea constitutes waiver of various constitutional rights); see also United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005) (citing Brady v. United States, 397 U.S. 742, 748 (1970)). Federal Rule of Criminal Procedure 11 is designed to ensure that a district court is satisfied that this requirement has been met.
During defendant Thomas's change of plea hearing, Judge Zoss thoroughly discussed all of the Rule 11 requirements with defendant Thomas. In particular, Judge Zoss inquired into defendant Thomas's competency to proceed. Judge Zoss also ensured that defendant Thomas had received a copy of the Indictment, that he had an opportunity to review the Indictment with his attorney, and that he understood the charges contained in the Indictment. Judge Zoss explained:
Plea Hearing Tr. at 2-3.
After having the prosecutor set out what he believed was the factual background for the charges, Judge Zoss went over the elements of the charged offenses with Thomas in the following colloquy:
Plea Hearing Tr. at 10-11.
To convict a defendant of conspiracy, the prosecution must prove that there was an agreement to achieve an illegal purpose, that the defendant knew of the agreement, and knowingly became a part of the conspiracy. See United States v. Winston, 456 F.3d 861, 866 (8th Cir. 2006); United States v. Pizano, 421 F.3d 707, 719 (8th Cir. 2005); United States v. Morales, 120 F.3d 744, 748 (8th Cir. 1997); United States v. Berndt, 86 F.3d 803, 809 (8th Cir. 1996). While under oath at the change of plea hearing, Thomas admitted each of these requirements. The doctrine of mistake only permits a withdrawal of a guilty plea when it appears that the defendant "did not understand the nature of the offense charged." Morales, 120 F.3d at 747. The record does not suggest that Thomas misunderstood the nature of the charged conspiracy. Rather, Thomas did not file his motion to withdraw his guilty plea until after the filing of the first draft of his presentence investigation report. It appears that, when faced with the prospect of a long prison term, Thomas had second thoughts regarding his decision to plead guilty. "`Post-plea regrets by a defendant caused by contemplation of the prison term he faces are not a fair and just reason for a district court to allow a defendant to withdraw a guilty plea. . .'" United States v. Bowie, 618 F.3d 802, 811 (8th Cir. 2010) (quoting United States v. Davis, 583 F.3d 1081, 1089 (8th Cir. 2009)); United States v. Stuttley, 103 F.3d 684, 686 (8th Cir. 1996) (same); see also United States v. Green, 521 F.3d 929, 931 (8th Cir. 2008) ("the plea of guilty is a solemn act not to be disregarded because of belated misgivings about its wisdom").
Thomas also argues that he was unaware of the possible sentence he was facing until after his plea hearing because both his counsel and the prosecutor grossly underestimated his guideline sentencing range at the change of plea hearing, and the possibility of the career offender enhancement, see U.S.S.G. § 4B1.1(a), applying to him was not discussed.
The Eighth Circuit Court of Appeals has explained:
United States v. Davis, 583 F.3d 1081, (8th Cir. 2009) (quoting United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006) (internal citations omitted)); accord United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996) ("A defendant's misapprehension of the application of the Guidelines to his sentencing does not constitute a fair and just reason for withdrawing a plea so long as the defendant was told the range of potential punishment and that the Guidelines would be applied to determine his sentence."); see United States v. D'Angelo, 172 F.3d 1046, 1047 (8th Cir. 1999) (defendant's reliance on erroneous legal advice from defense counsel regarding sentencing guidelines does not provide ground for withdrawing guilty plea); United States v. Ludwig, 972 F.2d 948, 950-51 (8th Cir. 1992) (holding that defendant's unawareness of applicability of career-offender provision did not constitute fair and just reason to allow him to withdraw his guilty plea where he had been apprised of the possible range of imprisonment); see also United States v. Himick, 139 Fed. App'x 227, 229 (11th Cir. 2005) (holding district court did not abuse its discretion by denying defendant's motion to withdraw his plea where defendant argued that he should be allowed to withdraw his plea because his attorney never advised him of the possibility of being sentenced as a career offender but acknowledged that he understood the maximum possible sentence for his crime and that his ultimate sentence could be greater than estimates given to him by his attorney or anticipated by the parties); United States v. Williams, 116 Fed. App'x 539, (5th Cir. 2004) (holding defendant not entitled to withdraw guilty plea on ground that he was unaware he was facing enhanced penalty as a career offender where defendant was informed of the maximum sentence he faced); United States v. Howard, 341 F.3d 620, 622 (7th Cir. 2003) (holding defendant had not shown a fair and just reason to withdraw guilty plea even though his counsel failed to inform him that he would be sentenced as a career offender where defendant was informed that he faced a possible maximum sentence of life imprisonment); cf. Thomas v. United States, 27 F.3d 321, 324 (8th Cir. 1994) (holding a defendant had no right to be specifically informed of the effect of a "career offender" provision on his sentencing range).
My review of the plea hearing transcript reveals that Judge Zoss fully satisfied the requirements of Rule 11(b) by explicitly informing Thomas of the maximum sentence he faced at the time of sentencing as well as the mandatory minimum sentence he faced. Judge Zoss explained:
Plea Tr. at 16-18 (emphasis added).
When Judge Zoss then asked counsel to predict the guidelines calculations for Thomas, the prosecutor and defense counsel agreed that the "rough prediction" for Thomas's criminal history category would be a level V or VI, and his guideline range would be a sentence of 24 to 30 months on the drug charge and at least 60 months on the § 924(c)(1)(A) gun charge, for a guideline range of 84 to 90 months. Plea Tr. at 22-23. The prosecutor, however, cautioned:
Plea Tr. at 22. Judge Zoss added his own note of caution, informing Thomas that any sentencing estimates made by counsel were simply estimates that were not binding on me:
Plea Tr. at 23-26 (emphasis added).
I conclude that, during the change of plea hearing, Judge Zoss correctly informed Thomas of the statutory maximum sentences that he faced and that the Guidelines would be used to determine his sentence. Thus, I find that Thomas's decision to enter his plea of guilty to the charged offenses was made knowingly and voluntarily and defendant Thomas is unable to show a fair and just reason for me to allow him to withdraw his guilty plea.
Because defendant Thomas has failed to establish a fair and just reason for withdrawing his guilty plea, I need not address the remaining pertinent factors. See Held, 651 F.3d at 853, see also Smith, 422 F.3d at 721 (instructing that "[i]f a defendant fails to establish a fair and just reason for withdrawing the guilty plea, the district court need not address the remaining factors."); United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998) (noting that "if a defendant does not present a fair and just reason for withdrawal of a guilty plea no need exists to examine the other factors."); United States v. Wicker, 80 F.3d 263, 266 (8th Cir. 1996) (holding that "`[i]f the defendant fails to establish a fair and just reason for withdrawing the guilty plea, the trial court need not address the remaining considerations.'") (quoting United States v. Nichols, 986 F.2d 1199, 1201 (8th Cir. 1993)). Thus, defendant Thomas's Motion to Withdraw Guilty Plea is denied.
After reviewing the record and considering the parties' arguments, I find that defendant Thomas has failed to demonstrate a fair and just reason to withdraw his guilty plea. Therefore, defendant Thomas's Motion To Withdraw Guilty Plea is
FED. R. CRIM. P. 11(b).
