The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.
This matter is before the Court on remand from the Court of Appeals and, more specifically, on defendant's motion to withdraw his plea of guilty.
Defendant was convicted on his plea of guilty of two counts of conspiracy to distribute heroin and one substantive count of attempted distribution of heroin and sentenced, prior to Apprendi v. United States, 530 U.S. 466 (2000), and after a Fatico hearing in which the Court determined the drug quantity, to concurrent 20 year terms of imprisonment on each count. He appealed the sentence and, after Apprendi came down, the Second Circuit vacated the sentence and remanded for further proceedings. United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002). The basis for the remand, in relevant part, was that, in light of Apprendi, "it was error . . . to permit Yu to plead guilty to quantity-specific charges while refusing to allocute to quantity." Id. at 197. In other words, the Court of Appeals concluded that "Apprendi is violated when[, as here,] a judge's finding [on drug quantity] triggers a mandatory minimum sentence that is less than the maximum penalty provided for by the penal statute but that exceeds the otherwise-applicable sentencing range under the federal Guidelines." Id. (citing United States v. Guevara, 277 F.3d 111 (2d Cir. 2001)).
Defendant now moves to withdraw his plea of guilty. He contends that he entered the plea in reliance on the advice of counsel that the judge would determine the drug quantity by a preponderance of the evidence without telling him that the jury would have made that determination had he gone to trial. Yu Aff. ¶¶ 6-9.
The Federal Rules of Criminal Procedure provide that a defendant may withdraw a guilty plea prior to sentencing upon showing a "fair and just reason." FED. R. CRIM. P. 11(d)(2)(B) (2003). "Although this standard implies that motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for withdrawal . . . ." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (internal quotations marks and citations omitted); see also United States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994) ("A defendant has no absolute right to withdraw his plea of guilty.").
In this case, there are no valid reasons for withdrawal. Defendant freely and knowingly confessed under oath his guilt of three crimes with which he was charged. There is no suggestion, even now, that he was not guilty. Indeed, if he were to take the position that he did not commit the offenses, he would be admitting that he committed perjury or violated 18 U.S.C. § 1001 when he confessed his guilt at the time he entered his plea.
Equally important, the basis for his claim — the premise that he was entitled to a jury determination of the drug quantity but was misled as to that fact by his then counsel — proves, notwithstanding the Circuit's decision in this case, to be incorrect. Subsequent to the decision on appeal, the Supreme Court decided Harris v. United States, 536 U.S. 545 (2002), which makes clear that the determination by the judge rather than the jury of facts that result in the imposition of a mandatory minimum sentence raises no constitutional question as long as the sentence does not exceed the otherwise applicable statutory maximum. See, e.g., United States v. Luciano, 311 F.3d 146, 151 (2d Cir. 2002); United States v. Richards, 302 F.3d 58, 66 (2d Cir. 2002). *fn1 That is precisely the case here.*fn2 Defendant's efforts to distinguish Harris are unpersuasive. In consequence, Harris and its Second Circuit progeny establish that the advice that defendant claims to have received and relied upon in deciding to plead guilty was precisely correct. There is no inequity in holding him to this plea.
All of the remaining questions addressed by the parties may be resolved at sentencing.
While the government makes a number of other arguments in opposition to defendant's motion, what has been said already is sufficient. The motion to withdraw the plea is denied. The case is set for resentencing on April 30, 2003, at 2:30 P.M.