The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.
Pursuant to Federal Rule of Criminal Procedure 32(d) and 28 U.S.C. § 2255, defendant moves this Court to set aside his plea of guilty to mail fraud, 18 U.S.C. § 1341, vacate his sentence and grant him a jury trial. Defendant's motion is predicated on allegations that his plea was involuntary because it was induced by a promise that he would not be incarcerated, that the prosecutor's comments during the sentencing hearing breached the plea agreement, that his plea was not made knowingly and voluntarily, and that he was not given adequate time to review the presentence report in order to refute any inaccuracies contained therein. After careful consideration of defendant's motion, the government's opposition thereto and the record, this Court holds that defendant's motion is denied.
On January 23, 1986, defendant faced a trial for two counts of mail fraud, 18 U.S.C. § 1341, two counts of wire fraud, 18 U.S.C. § 1343, and three counts of interstate transportation of monies obtained by fraud, 18 U.S.C. § 2314. Defendant pleaded not guilty to each count. Following the impanelling of the jury, but prior to the presentation of any evidence, defendant's attorney requested a recess to negotiate a plea agreement with the prosecutor. (Plea Transcript 3-4)(hereinafter "P"). Shortly thereafter, defendant's attorney apprised the Court that an agreement had been reached. (P 6). The prosecutor advised the Court that the defendant agreed to plead guilty to one count of his choice on the condition that the government dismiss the remaining counts, not prosecute him for related activities involving victims in New York and Ohio, waive its right to argue that the defendant be incarcerated pending sentencing ("step-back"), waive its right to allocute at sentencing except with respect to full restitution to the victim in the amount of $62,500 and recommend at sentencing that any penalty imposed by the Court not exceed three years. (P 6-8).
After the prosecutor outlined the plea agreement, the defendant was sworn and the Court reviewed the plea agreement with the defendant. (P 10-12). Defense counsel then explained that the prosecutor agreed not to affirmatively argue that defendant be incarcerated, but only to recommend that any sentence not exceed three years. (P 12). The defendant subsequently indicated he understood that despite the prosecutor's recommendation, sentencing was within the sole discretion of the Court. (P 12).
The Court proceded with the Rule 11 inquiry, advising defendant of the rights he was waiving by pleading guilty. (P 15-16). The Court then apprised defendant of the elements of mail fraud, (P 17), which the defendant chose to plead guilty to. (P 9). After the defendant acknowledged that he understood "each and all" of the elements of mail fraud, (P 17-18), the prosecutor proffered the evidence it intended to introduce to prove its case. (P 18-19). The defendant admitted that the evidence was true and that he was pleading guilty because he was in fact guilty. (P 20-24). Finally, defendant was repeatedly told that sentencing was within the sole discretion of the Court. (P 13-14 & 21-22). The Court then accepted defendant's plea of guilty with respect to the mail fraud charge. (P 29).
At the subsequent sentencing hearing the defendant and his counsel stated that they had read the presentence report and made detailed objections to any inaccuracies therein. (Sentencing Transcript 7, 11-15 & 26)(hereinafter "S"). The Court thereupon informed defendant that it would take defendant's version of the alleged inaccuracies as true. (S 11-15 & 51). And, in fact, the Court based its decision regarding defendant's sentence on defendant's version of the facts contained in the presentence report that were allegedly inaccurate. (S 51).
In accordance with the plea agreement, the prosecutor limited its allocution to its request for full restitution amounting to $62,500. (S 28-32). The prosecutor also recommended that any sentence imposed not exceed three years. (S 33). Again, the Court reminded defendant that no promises could be made regarding the severity of his sentence and that sentencing was within the sole discretion of the Court. (S 51-52). The Court then rendered a decision, sentencing defendant to five years imprisonment and ordered that restitution be paid in the amount of $62,500. (S 52).
III. THE MOTION TO WITHDRAW
Defendant has no absolute right to withdraw a guilty plea; permission to withdraw rests in the sound discretion of the trial court. United States v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 685 (D.C. Cir. 1979) Rule 32(d) of the Federal Rules of Criminal Procedure provides that a plea may be set aside after sentence is imposed by motion pursuant to 28 U.S.C. § 2255. The burden is on the defendant to establish, see United States v. Tiler, 602 F.2d 30, 35 (2d Cir. 1979), a "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). The standard is designedly high to "prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe." United States v. McKoy, 207 U.S. App. D.C. 112, 645 F.2d 1037, 1040 n.3 (D.C. Cir. 1981). The courts must strive to preserve the finality of convictions based on guilty pleas.
"Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea."
United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979)(citation and footnote omitted).
A. Defendant's Plea Was Knowing and Voluntary; Defendant Was Fully Aware That Sentencing Was Within the Sole Discretion of the Court and That He Could Receive the Maximum Sentence; Moreover, Neither Defense Counsel Nor the Prosecutor Promised Defendant That He Would Receive Less Than the Maximum Sentence
"A voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. . . . It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired." Mabry v. Johnson, 467 U.S. 504, 508, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984)(citations omitted). A plea of guilty is consensual if entered by a defendant who is fully aware of the direct consequences of his plea, "including the actual value of any commitments made to him by the court, prosecutor, or his own counsel." Id. at 509 (quoting Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970)(citations omitted)). Thus, as the Court held in Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), it follows "that when the prosecutor breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand. . . ." Mabry v. Johnson, 467 U.S. at 509 (explaining Santobello, 404 U.S. at 261-62). In short, if the defendant's plea rests in any significant degree on a false promise, so that the false promise can be said to be part of the consideration of the plea agreement, defendant's plea loses its consensual character if such promise is not fulfilled. See Santobello, 404 U.S. at 262.
Defendant first contends that his guilty plea was involuntary because he was induced to plead on the basis of a false promise. Specifically, defendant alleges that his decision to plead guilty was conditioned on an agreement between himself, defense counsel, the prosecutor and "purportedly" the Court that he would not be incarcerated. Defendant argues that his five year imprisonment sentence constituted a breach of the plea agreement and it thereby loses its consensual character.
If defendant was promised that he would not be sentenced to five years, he is entitled to relief. Santobello v. New York, 404 U.S. at 262. In determining whether such a promise was made, the Court cannot simply disregard or take lightly any statements made by the defendant while under oath. "For the representations of the defendant, his lawyer, and the prosecutor at [the original plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral poceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 52 L. Ed. 2d 136, 97 S. Ct. 1621 (1977)(emphasis added). A defendant's conclusory allegations will not overcome assertions of voluntariness made at a plea hearing. United States v. Brown, 715 F.2d 387, 388 (8th Cir. 1983). The defendant must produce convincing evidence that his plea was involuntary. Generally, a plea will not be set aside as involuntary where the defendant is invariably informed that the sentencing decision is solely within the discretion of the court and the defendant states at the plea hearing that no promises other than the plea agreement were made. See Hollis v. United States, 687 F.2d 257, 260 (8th Cir. 1982), cert. denied, 459 U.S. 1221, 75 L. Ed. 2d 462, 103 S. Ct. 1228 (1983).
Whether defendant was promised that he would not be incarcerated is a question of fact. During a hearing on May 22, 1986, the Court heard testimony from three witnesses regarding the circumstances surrounding the plea agreement. The defendant testified that he was promised probation if he agreed to make full restitution. (May 22 & 23, 1986 Transcript 137-63)(hereinafter "T"); Motion to Withdraw Plea, Exhibit 1. Defendant's attorney, Mr. Halleck, on the other hand, stated: "I didn't promise him that he would get probation, but I did promise him that he wouldn't get more than three years," (T 193), and "I have indicated to [the defendant] I can't make any promises about what the Court will do." (Plea Transcript 21)(hereinafter "P"). The prosecutor, Mr. Jackson, testified that he made no promises regarding incarceration except that he would recommend that the Court not give a penalty exceeding three years. (T 165-66); See also Affidavit of Darryl Jackson, Assistant United States Attorney, in Record.
As the fact finder and having observed the testimony first hand, the Court finds Mr. Jackson wholly credible. The Court spent many hours wrestling with the inconsistencies between the testimony of the defendant and his attorney, Mr. Halleck. There was not a common understanding between the defendant, Mr. Halleck and Mr. Jackson that the defendant would not be incarcerated. The only credible evidence of a plea agreement was the evidence of the agreement as stated in open court on January 23, 1986, within minutes after the agreement was reached. Both the defendant and Mr. Halleck stated that Mr. Jackson had agreed to "recommend" a maximum sentence of three years. (P 13-14, 21). Furthermore, it was made clear to defendant and Mr. Halleck, an experienced attorney and former judge, and they fully knew, that sentencing was within the sole discretion of the Court. (P 21). At no time did the Court promise defendant, Mr. Halleck or Mr. Jackson that it would not impose the maximum sentence. Mr. Halleck stated this to the Court. (P 21). One example of the colloquy before the Court follows.
THE COURT: Has your plea of this afternoon been tendered or offered to the Court by virtue of any representation by Mr. Halleck, or anyone else, including the prosecutor, as to what the actual sentence will be imposed by the Court?
MR. HALLECK: I have indicated what I think, but I have indicated to him I can't make any promises about what the Court will do.
THE COURT: That is exactly right. You understand that, do you not?
THE COURT: Do you understand the Court has total discretion and it could sentence you to a maximum term of imprisonment of up to five years ...