The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
On April 27, 2010, Defendant, represented by retained counsel, appeared before the undersigned United States Magistrate Judge for an inquiry pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Defendant, upon being advised by the undersigned of his right to trial, judgment and sentencing before a United States District Judge, consented to proceed before this court. Consent to Proceed Before United States Magistrate in a Misdemeanor Case (Document No. 2). Defendant indicated that he wished to plead guilty to the one-count Information filed by the United States Attorney, pursuant to the plea offer made by the United States Attorney for the District of Columbia. See Plea Agreement (Document No. 3). By said Information, the United States Attorney charged Defendant with the offense of criminal contempt of congress in violation of 2 U.S.C. § 192. Information (Document No. 1). The statute provides, in pertinent part:
Every person who having been summoned as a witness by the authority of . . . any committee of either House of Congress, willfully makes default, . . . shall be deemed guilty of a misdemeanor, punishable by a fine . . . and imprisonment in a common jail for not less than one month nor more than twelve months.
2 U.S.C. § 192 (emphasis supplied).
During the course of the nearly 45-minute hearing, Defendant, both orally and in writing, affirmed, inter alia, that he had reviewed the Information; that he understood the charge alleged in the Information; that he knew the penalties provided by the statute, and, more specifically, that he knew that the statute provided, as maximum penalties upon conviction, a term of imprisonment of 12 months and a fine of $100,000. See 04/27/2010 Minute Entry; Plea Agreement at 1, 8 [unnumbered].
At the conclusion of the Rule 11 inquiry, Defendant pled guilty to the offense charged. The court, upon consideration of Defendant's responses to the inquiries undertaken during the Rule 11 inquiry, found that Defendant's plea of guilty was a knowing and voluntary waiver of his rights supported by an independent basis in fact which contained each of the essential elements of the offense. The court therefore accepted the plea, and scheduled the sentencing hearing for a date in July, 2010. See 04/17/2010 Minute Entry.
However, the sentencing hearing was repeatedly continued in order to permit counsel to address the issue of whether the statute provides for the imposition of a mandatory minimum sentence of one month. Neither counsel for Defendant nor the United States Attorney suggested that he, or the party he represents, did not read the statute and note the provision that the offense is "punishable by . . . imprisonment . . . for not less than one month[.]" Rather, they both maintained that the statute does not require the imposition of a minimum period of incarceration of one month, and, even it does, the court need not do so. United States v. Bloch, No. 10-0215M-01, 2011 WL 321118, at *1 (D.D.C. February 2, 2011).
The court ultimately held that "Congress expressly provided for a mandatory minimum sentence of one month[;] . . .that the language by which it did so is unambiguous[,] and that no authority permits the court to disregard the provision, or to interpret it other than in accordance with its plain meaning." Bloch, 2011 WL 321118, at *7.
The United States Attorney filed a motion for reconsideration of the court's memorandum opinion, ostensibly offering "additional authority . . . that squarely supports the argument that a sentence of probation . . . is always permitted unless there is language expressly precluding probation." See Government's Motion to Reconsider the Court's February 2, 2011 Memorandum Opinion (Document No. 33) at 2. Four days later, the United States Attorney withdrew its motion for reconsideration, conceding that "its prior reliance on [one of the authorities cited in its motion] was misplaced." Government's Motion to Withdraw its Motion to Reconsider the Court's February 2, 2011 Memorandum Opinion (Document No. 36) at 2.
Defendant did not move for reconsideration of the court's memorandum opinion. Instead, Defendant moved to withdraw his plea of guilty to the violation of 2 U.S.C. § 192 alleged in the one-count Information filed by the United States Attorney, with his consent. See Defendant's Unopposed Motion to Withdraw Guilty Plea (Document No. 37).*fn1
Defendant "does not concede that 2 U.S.C. § 192 is in fact a statute that imposes a mandatory minimum sentence[,]" but "seeks to withdraw his plea on the grounds that he was not advised of the purported mandatory sentence prescribed by § 192, as required by Rule 11, prior to entering his plea." Defendant's Unopposed Motion to Withdraw Guilty Plea at 1, n.1.*fn2
Defendant did not request a hearing on his motion to withdraw his guilty plea; nor did he offer an affidavit or declaration with respect to any matter which the court would, of necessity, be required to consider during the determination of his motion.
The United States Attorney, in his response, states that "the government believes that the [D]efendant's motion to withdraw his guilty plea in this case is well-founded[,]" and that "[t]he government, therefore, does not oppose [D]efendant's motion to withdraw his guilty plea." Government's Response to Defendant's Motion to Withdraw Guilty Plea (Document No. 39) at 1. The United States Attorney asserts that the record indicates that "(I) the court did not inform the defendant that he faced a one month mandatory minimum period of incarceration for his plea of guilty to 2 U.S.C. § 192; and (ii) the defendant had no understanding that he faced one month of mandatory incarceration by pleading guilty."*fn3
Defendant, in his reply memorandum, offers, for the first time, a sworn statement: Defendant's counsel states that "[t]o the extent that the Court has any concerns regarding the record in this case, we have attached an affidavit from Mr. Bloch further reinforcing the fact that he would not have pled guilty if he had been informed that section 192 was not a probation-eligible offense." Defendant's Reply in Support of His Unopposed Motion to Withdraw His Guilty Plea (Document No. 42) at 1.*fn4 The affidavit, in its entirety, reads:
I, Scott J. Bloch, declare under penalty of perjury as follows:
1. I am the defendant in the above captioned matter.
2. At the time I negotiated my guilty plea to one count of contempt of congress pursuant to 2 U.S.C. § 192, I believed that such an offense was probation-eligible, and I believed that it was possible that I could be sentenced to probation.
3. If I had been informed that 2 U.S.C. § 192 was not a probation-eligible offense, or that any sentence under 2 U.S.C. § 192 required a mandatory minimum term of incarceration, I would not have pleaded guilty.
Affidavit of Scott J. Bloch (Document No. 42-1).
Thus, the issue present by Defendant, through his motion to withdraw his plea of guilty, is whether or not a defendant may withdraw his plea of guilty prior to sentencing by reason of the court's Rule 11(b)(1)(I) oversight, where the defendant (1) is a lawyer; (2) was represented by retained counsel; (3) executed a written plea agreement through which he acknowledged that he could be sentenced to a period of incarceration of up to one year; (4) agreed that a sentence within the applicable Sentencing Guidelines range would be presumptively reasonable; (5) waived his right appeal any sentence "within the Stipulated Guidelines Range . . . and . . . agreed that any sentence within the Stipulated Guidelines Range is reasonable"; (6) stated on the record during the Rule 11 colloquy that he had read the Information by which he was charged with a violation of 2 U.S.C. § 192, and did not require more time to review it before the Rule 11 colloquy proceeded; (7) was advised by the court of the maximum penalty for the offense; (8) acknowledged on the record that no one had promised what sentence would be imposed; (9) stated that he understood that if the sentence "is more severe than you expect it will be, that you are still bound by your plea, and that you will not be permitted to withdraw your plea for that reason[,]" and (10) now asserts only that "I believed that the offense was probation-eligible, and . . . that it was possible that I could be sentenced to probation[,]" and that "had I been informed . . . that any sentence under 2 U.S.C. § 192, required a mandatory minimum term of incarceration, I would not have pleaded guilty."
The undersigned finds that the answer to the question is no.
Rule 11 of the Federal Rules of Criminal Procedure "delineates procedural safeguards to ensure that a guilty plea is entered into knowingly, voluntarily, and intelligently." United States v. Sibblies, 562 F. Supp. 2d 1, 4 (D.D.C. 2008) (citing Fed. R. Crim. P. 11(b)). "An understanding of the crime to which a defendant is admitting guilt is a 'core consideration' of Rule 11." Id. (quoting United States v. Shah, 263 F. Supp. 2d 10, 21 (D.D.C. 2003)) (internal citation omitted); see also United States v. Basu, 531 F. Supp. 2d 48, 52 (D.D.C. 2008) (citation omitted). Rule 11 of the Federal Rules of Criminal Procedure provides, in pertinent part, that before a court accepts a plea of guilty, the court "must address the defendant personally in open court." Fed. R .Crim. P. 11(b)(1). "During this address, the court must inform the defendant of and determine that the defendant understands" fourteen enumerated consequences of pleading guilty, one of which is "any mandatory minimum penalty[.]" Fed. R. Crim. P. 11(b)(1)(I).*fn5 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." Sibblies, 562 F. Supp. 2d at 4 (citing Shah, 263 F. Supp. 2d at 21); see also United States v. Thomas, 541 F. Supp. 2d 18, 24 (D.D.C. 2008).
Rule 11 further provides that a defendant may withdraw a plea of
guilty after the court accepts the plea, but before it imposes
sentence, in two circumstances, only one of which could be applicable
here: "if . . . the defendant can show a fair and just reason for
requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B).*fn6
Rule 11 does not provide that a court must permit a defendant
to withdraw a plea of guilty upon a mere showing of a variance from
the requirements of the rule; rather, "[a] variance from the
requirements of this rule is harmless error if it does not affect
substantial rights." Fed. R. Crim. P. 11(h); see also Shah,453 F.3d at
521 ("Although motions to withdraw a guilty plea before sentencing are
often granted, relief is not a matter of right."); Basu,531 F. Supp.
2d at 52 ("Although presentence withdrawal motions should be
'liberally granted,' they are 'not granted as a matter of right'";
the decision whether or not to grant a motion to withdraw a plea of
guilty "is within the discretion of the trial judge.") (internal
citations and quotations omitted); cf. Sibblies, 562 F. Supp 2d at 4
("The defendant's representations at the plea hearing regarding
'adequacy of counsel and the knowing and voluntary nature of his plea
. . . may constitute a formidable barrier to . . . later
refutations.'") (internal citations and quotations omitted). This
Circuit has held that in order for a defendant to establish that an
error by the district court in the conduct of the Rule 11 colloquy
affected his substantial rights, "he 'must show a reasonable
probability that, but for the error, he would not have entered the
plea.'" United States v. Robinson, 587 F.3d 1122, 1130 (D.C. Cir.
2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
This Circuit has held that while withdrawal of a plea prior to sentencing "is to be liberally granted," a district court's refusal to permit a defendant to withdraw his plea is reviewed "only for abuse of discretion." United States v. Berkeley, 567 F.3d 703, 708 (D.C. Cir. 2009) (citations omitted); see also United States v. Curry, 494 F.3d at 1128 (citations omitted). The Circuit has articulated three factors which guide such review: "(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government's ability to prosecute the case; and (3) whether the guilty plea was somehow tainted." Id. (quoting Curry, 494 F.3d 1128 (D.C. Cir. 2007)) (internal citation omitted). The Circuit has characterized the third factor as the "most important." Id. (citation omitted). Put another way, the defendant must show "an error in the taking of his plea or some 'more substantial' reason he failed to press his ...