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December 11, 2000


The opinion of the court was delivered by: Batts, District Judge.


This is a complicated criminal case involving a Defendant with a long history of drug charges and cooperation with the Government in both the Southern and Eastern Districts of New York (the latter a sealed record unknown to this Court or the parties before this Court), masquerading as a simple guilty plea which took place on November 6, 1995, and which yet again eludes closure before this Court through sentencing.

The Defendant pled guilty pursuant to a cooperation agreement with the Government with the intent and purpose of obtaining a § 5K1.1 letter on his behalf from the Government. Pursuant to what is apparently the Government's policy in these matters, the Defendant was required to allocute to four Counts, at least two of which were crimes of which the Government was not aware before the Defendant informed them. Count Two apparently is a crime identical to the one charged and sealed in the Eastern District, so it is at least arguable whether or not the Government would have learned of it independently of the Defendant. Unfortunately for the Defendant, his subsequent criminal activity (consisting of a drug arrest in August of 1997) was deemed a breach of the agreement and thus he is before the Court for sentencing without the benefit of a § 5K1.1 letter.

The procedural history before this Court hints somewhat at the underlying complexities and denials by the Defendant.*fn1 Familiarity with the record before and submissions to this Court is assumed.

The Court writes at this juncture to clarify the record and to rule on outstanding defense motions.*fn2

Withdrawal of Guilty Plea

Defendant has moved several times to withdraw his 1995 guilty plea; the Court has denied those motions for the reasons given at those times.*fn3 The most recent date for sentence was November 30, 2000. That date had been set in mid-October, 2000, after the receipt of both the Government's and Defendant's response to the Pre-Sentence Report ("PSR"). The week before, Chambers heard murmurings from the able and fiercely zealous defense attorney, Alan Seidler, that his client wanted to make another motion, this time having to do with matters related to the recent Supreme Court case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (hereafter "Apprendi"), and its progeny. However, no actual motion was proffered to the Court until the proceeding on November 30, 2000, due to what Mr. Seidler characterized as problems with the Post Office. See Nov. 30, 2000 Tr. at 4. The Court declined the motion papers, inviting the defense attorney instead to explain on the record what the basis for his motion was and its supporting authority.

Mr. Seidler explained that his client wished to withdraw his guilty plea (again) because, while the charging Information did set forth the quantities of drugs in Count Two, the Defendant did not allocute to any amounts during his plea to Counts One or Two. Counts One and Two charged the Defendant with drug conspiracies, pursuant to 21 U.S.C. § 846, to violate 21 U.S.C. § 841(a)(1) and 841(b)(1)(A).

The Court took a recess to review the two out-of-circuit cases on which Mr. Seidler indicated his client was relying in order to support the withdrawal of his guilty plea: U.S. v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000). Upon review of the cases and further inquiry by the Court, it appeared that the Defendant was arguing that on his allocution he could not be sentenced under 21 U.S.C. § 841(b)(1)(A) or (B), since the quantities of the drugs involved had not been established beyond a reasonable doubt. Quoting the Rogers case into the record,*fn4 the Court asked if the appropriate remedy for the alleged plea deficiency was not as set forth in that case. Both defense counsel and the Government agreed with the Court that, if the Defendant were to be sentenced under 21 U.S.C. § 841(b)(1)(C), a section with a twenty year maximum statutory sentence, that the proffered motion would become moot. See Nov. 30, 2000 Tr. at 17-18.

Our Circuit has yet to weigh in on the effect of Apprendi, particularly in cases where conviction was by guilty plea (as indeed was the case in Apprendi itself) and/or where neither the charging instrument nor the Defendant (or the Court in explicit questions) as part of his guilty plea allocution, has specified a quantity of drugs or money. In light of Apprendi, this Court finds that if a person is convicted of a § 841 violation and no quantity is found beyond a reasonable doubt, sentencing is still appropriate under § 841(b)(1)(C). It would also appear that as long as the statutory maximum is not exceeded by the guideline range at issue, that the holding of Apprendi and its progeny is not implicated.

It is clear to this Court that the Defendant is not happy with the position in which he finds himself, having breached the cooperation agreement with the Government after allocating to four Counts. There is no question that the Defendant was advised and cautioned by the Court of the consequence of his guilty plea and the fact that he could not withdraw it, regardless of the sentence imposed.*fn5 It is clear that the Defendant, under oath, responded that he was pleading voluntarily and without coercion, that he was satisfied with his attorney at the time, that he was pleading guilty because he was guilty.*fn6

Accordingly, the remedy for the Defendant's current displeasure with his posture before this Court for sentencing is not to withdraw his guilty plea — as there is no basis upon which to withdraw it*fn7 — but rather to address his arguments for the Court's consideration in mitigation of sentence. There is nothing in the cooperation agreement which precludes the Defendant from raising the arguments Mr. Seidler has made to the Court on November 30, 2000. The Court will consider Defendant's arguments accordingly as follows.

Appropriate Guideline Offense Level

A. Counts Three and Four of the ...

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