alone in a car downtown, in the vicinity of 136th Street.
Diaz concluded by testifying that a short while later that
same afternoon he met Fernandez in front of a grocery store on
136th Street, between Broadway and St. Nicholas Avenue, and
further discussed the sale with him. According to Diaz, Marte
arrived and asked him to accompany him to a taxicab where he
could get the narcotics. In the cab, Diaz saw a third
individual, Garcia-Flores, holding a package which Marte took
and examined. Diaz gave a pre-arranged signal to the DEA
agents on the scene who proceeded to arrest Marte, Fernandez
and Garcia-Flores. The government then rested its case.
On May 10, 1989, after calling a character witness,
Fernandez took the stand. He denied knowing involvement in any
narcotics transaction. He testified that on February 27, 1989,
he saw Diaz and another individual (Gabriel) at a restaurant
where the two asked Fernandez if he knew where Marte was.
Fernandez admitted that on February 28, 1989, he met Marte in
front of a grocery store on 136th Street between Broadway and
St. Nicholas Avenue, but said he was there to borrow Marte's
car because his own car was broken. Fernandez testified that
he agreed to drive Marte to 143rd Street, where Marte had "an
errand" to run, and then drive back to the grocery store on
136th Street where he would meet Marte. Finally, Fernandez
testified that later on the afternoon of February 28 he was
waiting for Marte in front of the grocery store on 136th
Street when he was arrested, and that Marte was near a
Upon completion of direct, and cross-examinations of
Fernandez, the defense rested and the court adjourned for
lunch. After lunch and on the eve of summations, Fernandez's
attorney informed the court that after "very, very extensive"
discussions with Fernandez and his family, Fernandez now
wished to change his plea to guilty to both counts of the
indictment. The court allowed the application, placed
Fernandez under oath and conducted an allocution pursuant to
The allocution was in stark contrast to the testimony
Fernandez had given earlier that day. In the plea proceeding,
Fernandez admitted that he conspired with Marte on February
28, 1989, by agreeing to ask the informants to show him the
money for the cocaine. Fernandez also admitted that he
understood that if the informants showed them the money,
Fernandez and Marte, or Marte alone, would arrange to get the
cocaine. Finally, Fernandez admitted that he had agreed to
count the money to ensure Marte received the amount Diaz had
agreed to pay. However, Fernandez maintained that after he
requested to see the money, he simply drove Marte to his
errand on 143rd Street and returned to 136th Street to wait
for him, as they had agreed. Fernandez said that he did not
know whether he would receive any compensation for this
participation in the conspiracy.
The court advised Fernandez that he faced a five-year
statutory minimum sentence and a possible 160 year maximum
sentence for the crimes to which he was pleading guilty. The
court also explained that Fernandez could not withdraw his
plea of guilty simply because the sentencing range might be
higher than he or his attorney expected. Fernandez stated that
he understood the charges, that he was satisfied with his
representation and that he knowingly waived his right to trial
and the related rights enumerated in Fed.R.Crim.P. 11. During
the course of ascertaining the factual basis for the plea, the
court asked Fernandez if he was "pleading guilty to the crimes
charged in counts one and two because, in fact, [he was]
guilty of the crimes charged in counts one and two," and
Fernandez replied affirmatively. Plea Tr. at 19. The court
then accepted and entered Fernandez's guilty plea to both
counts of the indictment on May 10, 1989.
In September, 1989, after receiving the presentence report
containing the calculated sentencing range under the
sentencing guidelines, Fernandez' attorney notified the Court
that his client now took the position that he was innocent and
that he wished to move to withdraw his guilty plea. Counsel
stated that since one of the grounds asserted by Fernandez as
a basis for withdrawing his plea was ineffective assistance of
counsel, he wished to withdraw from the case. The Court
allowed a substitution of counsel and permitted the defendant
to move to change his plea. On November 29, 1989, the present
motion pursuant to Fed.R.Crim.P. 32(d) followed.
It is well settled that a defendant has no absolute right to
withdraw his guilty plea. United States v. Figueroa,
757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840, 106 S.Ct. 122,
88 L.Ed.2d 100 (1985). Accord Brady v. United States,
397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970). A motion
pursuant to Fed.R.Crim.P. Rule 32(d) to withdraw a guilty plea
may be granted only if (1) the motion is made before
sentencing, (2) "valid grounds" for the withdrawal exist, and
(3) granting the motion would be "fair and just" considering
any prejudice the government may suffer as a result. See United
States v. Figueroa, 757 F.2d at 475. Whether to grant the
motion falls within the broad discretion of the trial court.
United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989).
Furthermore, when the defendant has failed to show valid
grounds in support of his withdrawal motion, the government
need not demonstrate that withdrawal of the plea would
prejudice it. United States v. Saft, 558 F.2d 1073, 1083 (2d
In deciding whether or not to grant a withdrawal motion, the
court should balance each of the three elements articulated in
Figueroa to reach the most equitable result. An analysis of
each prong of the Figueroa test follows.
A. The Timing of the Plea Withdrawal Application.
Fernandez has yet to be sentenced; therefore, his plea
withdrawal application would, at first blush, seem to pass the
first test of Figueroa, namely that it come prior to sentence.
Significantly, however, Figueroa was decided in 1985, two years
before the effective date of the sentencing guidelines and
related procedures that apply in this case. Under these
procedures, a defendant is provided with a copy of the
presentence report which contains the sentencing range under
the guidelines that, except for an unlikely departure by the
trial judge, determines the minimum and maximum sentences he
could receive. Thus, in a guidelines case a defendant now knows
what his minimum sentence is likely to be before the judge
actually sentences him. Figueroa's first requirement for plea
withdrawal, that it be before sentencing, was designed to
ensure that a defendant who wished to withdraw his plea was
doing so for reasons other than merely to obtain a second
chance after learning his sentence. Such an improper motive can
now be ascribed to a defendant who waits to withdraw his plea
until after learning his sentencing range from the presentence
In this case, Fernandez did not indicate to the Court any
desire to withdraw his plea until more than four months after
trial and after he had been furnished with a copy of his
presentence report which set forth a guideline range of 63 to
78 months. Thus, Fernandez' argument that he has satisfied the
first test of Figueroa, by moving to withdraw his plea prior to
sentence, loses much of its force. Fernandez has satisfied
Figueroa's first test only in the most technical sense.
B. The Existence of "Valid Grounds" for the
In ascertaining whether a defendant has demonstrated that
valid grounds support his motion to withdraw his guilty plea,
the court should consider the following factors: the length of
time between the plea and the withdrawal motion; the reasons
why the grounds for the withdrawal were not presented to the
court during earlier proceedings; the circumstances
surrounding the plea, including the nature and background of
the defendant or any admissions of guilt defendant may have
made; and whether the defendant has asserted and maintained
his innocence. See United
States v. Spencer, 836 F.2d 236, 239-240 (6th Cir. 1987), cert.
denied, 486 U.S. 1009, 108 S.Ct. 1736, 100 L.Ed.2d 200
(1988).*fn2 The Court examines these factors in turn.
1. Length of Time between Plea and Withdrawal Motion.
A motion to withdraw a guilty plea made shortly after the
plea was entered may indicate that the plea was entered
impulsively, justifying withdrawal. See United States v.
Barker, 514 F.2d 208 (D.C. Cir.), cert. denied, 421 U.S. 1013,
95 S.Ct. 2420, 44 L.Ed.2d 682 (1975) (swift change of heart
indicates plea made in haste or confusion). In the instant
case, four months passed between Fernandez's guilty plea on May
10, 1989 and his desire to withdraw that plea first articulated
in September, 1989. Four months is simply too long a period to
support a claim that the plea was made in haste or confusion.
See United States v. Spencer, 836 F.2d at 237 (five weeks not
prompt enough to warrant withdrawal); see also United States v.
Carr, 740 F.2d 339, 345 (5th Cir. 1984) (twenty-two days not
swift enough); see also Nunez Cordero v. United States,
533 F.2d 723, 726 (1st Cir. 1976) (two weeks not quick enough).
Fernandez waited until after reading the Probation
Department's sentence calculation before deciding he was
confused about the ramifications of his guilty plea. Without
more, such a four month delayed protestation of innocence does
not warrant withdrawal of the plea. See United States v.
Michaelson, 552 F.2d 472, 475-476 (2d Cir. 1977) (defendant's
"change of mind", two months after plea entered and one day
after learning sentence calculation, alone, is insufficient
grounds to grant withdrawal).
2. Why the Grounds for Withdrawal Were Not Presented
and the Circumstances Surrounding the Plea.
The amount of time which has elapsed between the plea and
the withdrawal motion is directly correlated with the amount
of evidence a defendant must proffer to support his motion.
See United States v. Barker, 514 F.2d at 222 (supporting
evidence must have considerable force where motion to withdraw
follows eight months after plea). The court must consider why
the defenses put forward in the motion to withdraw were not
raised at the time of the original pleading. United States v.