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UNITED STATES v. JORDAN

March 20, 1991

UNITED STATES OF AMERICA
v.
LARRY S. JORDAN



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Pursuant to Federal Rule of Criminal Procedure 32(d), the defendant moves this Court to set aside his guilty plea to the charge of possessing with intent to distribute 5 or more grams of a mixture or substance containing detectable amounts of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The defendant makes two claims in support of the motion: (1) the plea lacks a consensual basis because the prosecutor breached a promise to allow the defendant to cooperate with the government so that he could qualify for a sentencing departure pursuant to 18 U.S.C. § 3553(e); and (2) there exists an entrapment defense which absolves the defendant of legal responsibility for the crime. After careful consideration of the defendant's motion, the government's opposition thereto and the record in this case, the Court denies the defendant's motion.

 II. BACKGROUND

 The defendant was indicted on one count of possession with intent to distribute 5 or more grams of a mixture or substance containing detectable amounts of cocaine base in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B)(iii). On July 20, 1990, the defendant entered a plea of not guilty and a trial date was set. However, at a status call on September 12, 1990, defense counsel notified the Court of the possibility of a disposition, (Status Call Transcript at 2) (hereinafter "SC"), and two days later, the defendant withdrew his plea of not guilty and formally entered a guilty plea. (Plea Transcript at 2) (hereinafter "P").

 After the defendant was sworn, the Court conducted a Rule 11 inquiry, informing the defendant of the rights and privileges which he would waive by entering the plea of guilty. (P at 3-5). The Court advised the defendant that, by entering a guilty plea, he also would "waive any right to attack the circumstances of (his) arrest or anything leading up to this Indictment or growing out of this Indictment or pertaining to it in any way." (P at 5). The Court informed the defendant that he "won't have any right to contest it (the plea) whatsoever after this afternoon if your plea of guilty is accepted." Id. Later in the proceedings, the Court again told the defendant that he would not be able to withdraw his plea once it was accepted. (P at 12). The defendant said that he understood these warnings and limitations. (P at 5, 12). *fn1"

 The Court also enumerated the elements of the crime charged in the Indictment and explained to the defendant that, absent the plea, the prosecution would have to prove each of these elements beyond a reasonable doubt. Again, the defendant indicated that he understood these elements. (P 5-6). The Defendant then stated that he did in fact commit each of the elements of the crime charged. (P at 6). After the Government made a proffer of its evidence, the defendant agreed that the proffer accurately depicted his participation in the crime. (P at 6-8).

 The defendant was told that, under the statutory scheme, the Court was bound to impose a minimum prison sentence of 5 years. The Court also informed the defendant that he could receive a prison sentence for a term of up to 40 years, in addition to a fine of up to $ 2 million, four years of supervised release and a special assessment of $ 50.00. (P at 8-9).

 The prosecutor then advised the Court that, in exchange for the defendant's guilty plea, the government agreed not to oppose a two-level "acceptance of personal responsibility" reduction under the sentencing guidelines and not to oppose a sentence at the low end of the guideline range. (P at 12). The defendant reaffirmed his understanding that the Court was bound by the statutory scheme, and acknowledged that the ultimate sentence imposed by the Court would also depend on recommendations made in the presentence report. (P at 11-12). The Defendant also stated that he was fully and completely satisfied with the services provided by counsel. (P at 13). The Court then accepted the plea.

 At the conclusion of the proceedings, defense counsel asked to approach the bench and informed the Court of the possibility that sentencing may have to be postponed if the defendant cooperates with the government. The prosecutor confirmed that the defendant was engaged in discussions with the government. However, the prosecutor also informed the Court that, while such discussions were going forward, the government "made no representations whatsoever as to whether any request may be made to our departure committee regarding substantial assistance." (Sealed Transcript at 2) (hereinafter ST).

 The sentencing date was originally set for December 3, 1990, but the Court granted defendant's unopposed motion to postpone it until January 3, 1991, because factors related to the sentencing could not be determined by December 3. On or about December 19, 1990, the defendant was informed that the government would not recommend a § 3553(e) departure. Prior to sentencing, defendant notified the Court and the government of his desire to withdraw his plea.

 III. THE MOTION TO WITHDRAW SHOULD BE DENIED BECAUSE THE PROSECUTOR MADE NO PROMISES TO DEFENDANT REGARDING HIS COOPERATION; THE DEFENDANT KNOWINGLY AND VOLUNTARILY SURRENDERED ANY ENTRAPMENT CLAIM BY ENTERING HIS PLEA; THE DEFENDANT OFFERS NO EXPLANATION FOR SUBMITTING AN ENTRAPMENT DEFENSE AT THIS LATE STAGE; AND THE DEFENDANT HAS PRESENTED NO OTHER FAIR OR JUST REASON TO PERMIT WITHDRAWAL OF A VALID GUILTY PLEA.

 A defendant has no absolute right to withdraw a plea of guilty prior to sentencing. See, e.g., U.S. v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 685 (D.C. Cir. 1979), cert. denied, 445 U.S. 967, 64 L. Ed. 2d 244, 100 S. Ct. 1659 (1980); Everett v. U.S., 119 U.S. App. D.C. 60, 336 F.2d 979, 983 (D.C. Cir. 1964). Such pre-sentence motions "are addressed to the sound discretion of the District Court," U.S. v. Barker, 168 U.S. App. D.C. 312, 514 F.2d 208, 219 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 44 L. Ed. 2d 682, 95 S. Ct. 2420 (1975), and "will be reversed by an appellate court only for an abuse of that discretion." Everett, 336 F.2d at 983.

 The Court "may permit withdrawal of the plea upon the showing by the defendant of any fair and just reason." F.R.Crim.P. 32(d); C. Wright, 3 Federal Practice and Procedure: Criminal 2d § 538 (Supp. 1990). Although our Court of Appeals has remarked that "the terms 'fair and just' lack any pretense of scientific exactness," Barker, 514 F.2d at 220, courts usually consider the following factors in the evaluating motions of this kind: (1) was there a procedural defect in taking the plea; (2) did the defendant knowingly and voluntarily consent to the plea agreement; (3) does the defendant now have a basis to assert legal innocence; (4) did the defendant have adequate legal counsel throughout the ...


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