The opinion of the court was delivered by: Rouce C. Lamberth, United States District Judge
This case comes before the Court on Defendant Shah's memorandum in aid of sentencing , defendant's objections to the presentence report , and the government's response ; defendant's omnibus motion for sentencing under 18 U.S.C. § 3355(f) ; and defendant's motion for leave to withdraw guilty plea , the government's omnibus response , and defendant's reply .
Shah is one defendant of many in the multinational drug importation and distribution conspiracy charged in this case. The Court presided over two trials of various co-defendants, the first from October 1999 to January 2000 and the second from October to November of 2000, which resulted in convictions and lengthy sentences. Shah pled guilty before the first trial and entered into a cooperation agreement with the government. Two of the relevant terms of the agreement were that Shah was to cooperate "truthfully, completely, and forthrightly" with the government, Plea Agr. ¶ 6(a), and that Shah agreed "not to commit any criminal violation of local, state or federal law" while cooperating, id. ¶ 6(e). While incarcerated in the D.C. Jail during the period of his cooperation, Shah aproached a fellow inmate to arrange for drug importation and distribution through a Nepalese heroin supplier, to be effected by non-incarcerated associates of Shah and the fellow inmate. Shah had denied knowing this supplier during his FBI debriefings. Unbeknownst to Shah, the fellow inmate was cooperating with the government, and taped several conversations between Shah and his associates. Because of this conduct and its effect on Shah's credibility, the government determined not to call him as a witness in the second trial in this case. The government also determined that Shah had breached his plea agreement both in attempting to violate the law by seeking to arrange a drug deal, and in not responding fully and truthfully to FBI inquiries regarding the Nepalese supplier. Thus, the Departure Committee at the United States Attorney's office decided not to issue a departure letter for Shah.
Upon realizing that he is subject to a lengthy sentence that will reflect the criminal activity to which he had admitted in the course of his cooperation, rather than the fraction of that sentence defendant hoped would be imposed based on a government departure motion, defendant cries "Foul." Defendant takes a bifurcated approach in seeking to reduce his sentencing exposure. Shah seeks first and foremost to withdraw his plea of guilty. The Court takes note of the Plea Agreement's numerous exhortations that defendant may not withdraw his plea. Plea Agr. ¶ 6(e) (no withdrawal for defendant's breach); ¶ 7 (no withdrawal for government decision not to file 5K1.1 departure letter); ¶ 12 (no withdrawal for harshness of sentence imposed). Failing withdrawal, defendant advances myriad arguments opposing the Guidelines calculation presented in the Presentence Investigation Report (PSR) and seeks departure on various grounds.
Defendant pled guilty and agreed to cooperate with the government, and for this cooperation expected to receive a sentence less than 63-78 months. Shah Affidavit attached to Motion to Withdraw Guilty Plea  ¶ 11. Defendant believes he is entitled to a lenient sentence, period. Upon a determination that Shah did not keep the commitments he made in the plea agreement, the government declined to file a motion for departure for substantial assistance under § 5K1.1 of the Guidelines. Shah is now facing a sentence of 292 to 340 months based on his Guidelines offense level. Defendant seeks the benefit of his bargain, creatively urging various methods through which the Court can reward him where the government did not. This the Court declines to do.
The most serious and viable claim presented by Shah that he should be permitted to withdraw his guilty plea is an allegation of ineffective assistance of counsel during plea negotiations and at the plea colloquy. All Shah's arguments hinge on the validity of the plea agreement and the conduct of the plea colloquy. The PSR is based on the government's proffer of evidence at the plea hearing, which in turn was based on Shah's own admissions. If the plea agreement, and thereby the government's proffer, and the hearing at which the plea was accepted were valid, defendant cannot be heard to complain about the inclusion of facts to which he admitted in the Guidelines calculation. See, e.g., United States v. Leachman, 309 F.3d 377, 383-84 (6th Cir. 2002) (by pleading guilty defendant waived the right to have sentencing factors, including the amount of drugs, proven to a jury beyond a reasonable doubt). Likewise, if the plea agreement, proffer, and colloquy were valid, Defendant has no legitimate basis for withdrawing his plea.
A. Standards for Plea Withdrawal
A Court may permit a defendant to withdraw a plea of guilty if it is "fair and just" to do so. United States v. Barker, 514 F.2d 208, 219 (D.C. Cir. 1975). Withdrawal is to be liberally granted, but it is not a matter of right. United States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993). The D.C. Circuit revisited the issue of plea withdrawal in United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995). It promulgated a three-part inquiry for examining the propriety of permitting a defendant to withdraw a guilty plea:
First, a defendant generally must make out a legally cognizable defense to the charge against him.
Second, and most important, the defendant must show
either an error in the taking of his plea or some
"more substantial" reason he failed to press his case
rather than plead guilty. Finally, if those two
factors warrant, the court may then inquire whether
the Government would have been substantially
prejudiced by the delay in going to trial.
Id. at 1207. A defendant cannot satisfy the first factor — a claim of legal innocence — by a mere general denial, "he must affirmatively advance an objectively reasonable argument that he is innocent." Id. at 1209. Furthermore, "[i]f the movant's factual contentions, when accepted as true, make out no legally cognizable defense to the charges, he has not effectively denied his culpability, and his withdrawal motion need not be granted." Barker, 514 F.2d at 220.
To highlight its emphasis on the second factor, the Court noted that "a defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy burden if he is ultimately to prevail." Cray, 47 F.3d at 1208. It observed, "we have never held that a district court abused its discretion in denying a motion to withdraw a guilty plea where the defendant failed to show some defect in the taking of his plea under Rule 11." Id. at 1207. If the plea colloquy was not conducted in "substantial compliance" with Rule 11, the defendant should "almost always" be permitted to withdraw the plea. United States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993). For instance, the record of the plea colloquy must lead a reasonable person to believe that the defendant understood the nature of the charge, such as through a judicial recitation of the material details of the charge. United States v. Ahn, 231 F.3d 26, 33, 35 (D.C. Cir. 2000). An understanding of the crime to which a defendant is admitting guilt is a "core consideration" of Rule 11. Ford, 993 F.2d at 253. Where the defect in the plea is not one that would appear on the record, an evidentiary hearing may be appropriate. Cray, 47 F.3d at 1208-09.
The most important issue with regard to Shah's plea withdrawal motion, then, is whether the Rule 11 plea colloquy was properly conducted. If it was, Shah must "shoulder an extremely heavy burden if he is ultimately to prevail." United States v. Cray, 47 F.3d 1203, 1208 (D.C. Cir. 1995). Federal Rule of Criminal Procedure 11 sets out various safeguards to ensure that a guilty plea is entered intelligently and voluntarily. The Court in this case complied with all those requirements, including: informing defendant of the nature of the charge (R. 11(c)(1)), Tr. at 5-7; the minimum and maximum penalties (R. 11(c)(1)), Tr. at 7; the possibility of Guidelines departure (R. 11(c)(1)), Tr. at 8-9; the right to plead not guilty, go to trial by jury with assistance of counsel with confrontation and cross-examination of witnesses and Fifth Amendment right not to testify (R. 11(c)(3)), Tr. at 3-4; that a guilty plea means no trial will be had (R. 11(c)(4)), Tr. at 4; that a defendant's statements at the plea colloquy may be used in a perjury or false statement prosecution (R. 11(c)(5)), Tr. at 2-3; ascertaining that the plea was voluntary and not the result of force or threats (R. 11(d)), Tr. at 9; accepting the plea agreement in open court (R. 11(e)(2)), Tr. at 2, 9-11; and inquiring into the factual basis for the plea (R. 11(f)), Tr. at 11-12. The Court was fully solicitous of defendant, inquiring "Has anyone made any prediction or promise as to what sentence I'll give you in this case," to which Shah answered no, Tr. at 11, asking if he was satisfied with former counsel's representation of him, to which Shah answered yes, Tr. at 3, and giving the defendant an opportunity to raise any other concerns he might have, Tr. at 12.
As in Cray, Shah admitted to each element of the crimes charged, Tr. at 6-7, 11-12, fully agreed with the government's proffer, Tr. at 11-12, confirmed that he had not been threatened or coerced, Tr. at 9, and affirmatively answered the Court's questions after being told that they were posed to ascertain that the plea was entered voluntarily, Tr. at 2-5, 12-13. Cray, 47 F.3d at 1205. Unlike in Ford, here the Court explained the nature of the charges against Shah by reading the information, Tr. at 5-7, and established the factual basis by accepting the government's proffer and ascertaining that Shah had read it and his signature on the bottom was genuine, Tr. at 11-12. United States v. Ford, 993 F.2d 249, 252 (D.C. Cir. 1993). Furthermore, the government specifically stated on the record that the plea agreement provided that Shah accepted responsibility for the death of Raymond Cruz and for 10 to 30 kilograms of heroin. Tr. at 10. Shah did not contradict these representations. This examination of the transcript reveals that "[t]here is simply no room in this record for doubt that [defendant's] guilty plea was attended by all the required procedural safeguards." Cray, 47 F.3d at 1208.
C. Ineffective Assistance of Counsel
Attached to his motion to withdraw his plea  was Shah's affidavit, as well as that of his former attorney. Shah argues that his former attorney provided ineffective assistance of counsel, thus entitling him to withdraw his plea. To make out a claim of ineffective assistance of counsel sufficient to withdraw a guilty plea, a defendant must show that counsel's performance was deficient, and that the deficiency prejudiced the defendant. Cf. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (discussing standards for overturning results of trial). Shah alleges several areas in which former counsel was deficient: by failing to investigate, by telling Shah not to worry about the alleged drug quantity overreaching in the government's proffer at the plea hearing, by permitting Shah to be debriefed without the presence of his counsel, and by permitting Shah to plead despite knowing of the existence of an unspecified "meritorious defense."
Counsel is deficient if the representation falls below an objective standard of reasonably effective assistance. Strickland, 466 U.S. at 687-88. The errors made by counsel must be "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Even if this stringent standard is met, the defendant must prove prejudice. This means that "there is a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997). In the plea context, this means that "in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
1. Failure to Investigate
Shah urges that former counsel's failure to investigate the offense constitutes ineffective assistance of counsel. Counsel generally has a duty to investigate a case if necessary; in the context of a guilty plea this is because to effectively advise a client requires familiarity with the facts. Herring v. Estelle, 491 F.2d 125, 128 n. 6 (5th Cir. 1974) ("`Effective counsel includes familiarity of counsel with the case and an opportunity to investigate it if necessary in order meaningfully to advise the accused of his options.'" (emphasis added) (citation omitted)). However, the need to investigate can be obviated where, for instance, the defendant can supply all the information needed. Strickland, 466 U.S. at 691 ("For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether."). In this case, the defendant pled guilty and supplied the government (and presumably counsel) with all the information relevant to his case. Unless counsel must presume that a client is lying, independent investigation is not generally necessary in such a situation. Thus, counsel's failure to investigate the case beyond the facts supplied to him (and the government and ultimately to the Court) by his client was not so below the par for representation as to "undermine the proper functioning of the adversarial process." Strickland, 466 U.S. at 686.
While it was not perhaps best practice for an attorney representing a client charged with possession of a controlled substance on the scale seen here not to investigate the charges independently, it did not fall below an objective standard of reasonableness. This is further supported by Strickland's rule that counsel's decisions must be evaluated as of the time they were made. Id. at 690. When counsel was advising Shah to cooperate and plead, all parties anticipated that Shah would fully and truthfully cooperate with the government, refrain from breaking laws while cooperating, and otherwise comply with the terms of the plea agreement. For his cooperation, all parties anticipated that Shah would receive a downward departure under 5K1.1. Once a Court grants a 5K1.1 motion, the Court is free to impose any sentence that is fitting, and thus any disparity between the amount of drugs Shah now insists he distributed and the amount he previously informed the government he had distributed would not carry the same weight it carries in the Guidelines scheme. Thus, as a practical matter, counsel reasonably made the tactical decision not to enter into an extensive investigation to flesh out this disparity. Counsel had no way of knowing that Shah would breach his agreement, thus exposing himself to the Guidelines range he faces today.
Even if the failure to investigate was an objectively unreasonable trial strategy by former counsel, defendant has not proven prejudice. "Where the alleged error is failure to investigate or discover potentially exculpatory evidence, the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Although current counsel does not point out what exactly former counsel failed to investigate, the Court will presume that the exact drug quantities and Shah's involvement in Nuri Lama's drug-dealing behavior, to which counsel devotes copious briefings, is what Shah is referring to. Counsel never asserts that Shah was not responsible for some heroin, and indeed acknowledges that the Court's findings of fact in the previous trials in this case indicate that over 6 kilograms can be attributed to Shah.*fn1 While this difference of four kilograms changes the sentencing range under the Guidelines, this is not the type of evidence that would change the outcome of a trial. Compare United States v. Baynes, 622 F.2d 66 (3d Cir. 1980) (failure to investigate exculpatory evidence that would negate the government's only evidence against defendant warrants evidentiary hearing on ineffective assistance of counsel). A jury can be presumed just as likely to vote guilty for a defendant involved with six kilograms of heroin as with ten. Likewise, counsel's advice to plead guilty had nothing to do (according to the briefing) with drug quantity, but with the defendant's and former counsel's hope that defendant would receive a generous sentence reduction for his cooperation. Thus, a difference in kilogram weight of heroin would not have affected counsel's advice that defendant plead guilty.
2. Plea Colloquy Concerns
The above reasoning applies equally to Shah's complaints that counsel told him to accept the drug amounts in the government's proffer when Shah allegedly conferred with counsel during the plea colloquy to protest the amounts. Counsel is presumed to have acted out of a sound trial strategy. Strickland, 466 U.S. at 689. Here counsel and Shah were proving to the government and the Court that Shah was cooperating fully, completely, and eagerly with the government. To protest during the colloquy that the government's proffer, which was based on information supplied by Shah during the course of his cooperation, inflated Shah's role would expose Shah to the conclusion by the government and the Court that Shah had lied to the government, and thus endanger his 5K1.1 motion. Thus, it can be presumed that counsel was acting out of a sound trial strategy and his actions were objectively reasonable.
Furthermore, Shah had a duty to deal truthfully with the Court during the colloquy, and this included his agreement that the government's plea colloquy represented the true state of facts of his offense. Tr. at 11-12. The Seventh Circuit faced this dilemma in United States v. Stewart, 198 F.3d 984 (7th Cir. 1999), a case similar to this one, in which a defendant sought to withdraw his guilty plea on the ground that not all the drugs to which he had admitted possession were actually in his possession. The defendant urged that some of the drugs belonged to his brother, that he had never touched them or had any possessory interest in them, and that he had admitted to their possession during the plea colloquy only because he believed that he was going to get a 60 month sentence and be eligible for boot camp, and thus had no reason to deny possession. Id. at 985-86. The court queried why, when the defendant already had an opportunity to lay out the truth before the court, "should he now receive an opportunity to contradict himself under oath, and thus to violate 18 U.S.C. § 1623(c), the inconsistent declarations statute?" Id. at 986. The court found that "[a] defendant's protestations that statements freely made under oath when entering the plea were a pack of lies is not a `fair and just reason' to start anew, and that a belief that a defendant would get a low sentence does not confer license to lie to a judge. Id. at 987. The Court admonishes Shah as the Seventh Circuit admonished Stewart: "Entry of a plea is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal entitlement to benefit by contradicting himself under oath. Thus when the judge credits the defendant's statements in open court, the game is over." Id. The same prejudice analysis as above is relevant to this factor, and again shows that even if the alleged drug disparity exists, the outcome of conviction would be the same.
3. Debriefing without Counsel
Shah's third basis for his claim of ineffective assistance of counsel is that counsel permitted Shah to be debriefed by the government without counsel's presence. The plea agreement states that Shah "knowingly and voluntarily" waived the right to have his counsel present for interviews with law enforcement and government attorneys. Plea Agr ¶ 8. The plea agreement states that if Shah and his counsel wish to change this state of affairs, counsel need only send a notice in writing to the government and all future debriefings would be held with counsel present, and this would have no effect on any other terms and conditions of the agreement. Id. Shah's plea agreement is based on the standard form used by the U.S. Attorney's office in the District of Columbia. Thus, the Court can deduce that waiver of the right to counsel at debriefings is fairly common practice. Again, it must be emphasized that at the time the decision to waive counsel's presence was made, Shah and his counsel were focused on procuring a 5K1.1 letter in Shah's favor, and cooperating through waiver of counsel presumably enhanced the appearance of Shah's cooperation, and thus advising Shah to sign the waiver did not fall below the standard of objective reasonableness.
The prejudice analysis is particularly relevant to this claim. Shah does not explain how counsel's absence from the debriefing sessions prejudiced his decision to plead guilty, and unlike the other grounds the Court cannot supply for Shah a plausible reason why it would. When Shah submitted to debriefing it was presumably with the intention of turning state's evidence and cutting a deal. Where the decision to plead has already been made, it is illogical to claim that but for counsel's absence at the debriefing sessions, defendant would not have pled guilty. ...