The opinion of the court was delivered by: John Koeltl, District Judge.
The defendant, Juan Miguel Cruz, pleaded guilty to the two counts in Indictment 02 Cr. 407 ("the Indictment") on July 19, 2002. The defendant now moves to plead guilty to an allegedly lesser included offense but states that he does not wish to withdraw his original plea and go to trial. The defendant also moves to dismiss the Indictment.
Count One of the Indictment charges the defendant and a co-defendant with conspiring in violation of Title 21 United States Code Section 846, to distribute and possess with intent to distribute 100 grams and more of a mixture and substance containing a detectable amount of heroin, in violation of Sections 812, 841(a)(1) and 841(b)(1)(B) of Title 21, United States Code. Count Two charges the defendants with the substantive offense of distribution and possession with intent to distribute approximately 106 grams and more of a mixture and substance containing a detectable amount of heroin, in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(B), and Title 18, United States Code, Section 2. At his plea on July 19, 2002, the defendant pleaded guilty to both counts of the Indictment without a plea agreement. The Government submitted a letter pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), in which the Government explained that its view was that the Sentencing Guideline range for the defendant was sixty to seventy-one months.
After placing the defendant under oath, the Court asked Cruz a series of questions that confirmed that the defendant was competent to enter a plea and was satisfied with the representation of his attorney, Mr. Smith; that the defendant had reviewed and understood the Pimentel letter and the charges contained in the Indictment; that the defendant understood the Government's burden should he choose to go to trial; that the defendant understood all of his rights and was waiving them and that he was knowingly and intentionally entering a plea of guilty; and that the defendant was aware of the maximum and minimum sentences he raced pursuant to the Sentencing Guidelines. The defendant's allocution included the following exchange:
Court: All right. Mr. Cruz, tell me in your own words
what you did in connection with the crimes to which you
are entering the plea of guilty.
Defendant: Because I am guilty.
Defendant: I took drugs where I shouldn't.
Court: Where did you take the drugs?
Defendant: To a restaurant on 190th.
Court: Is that 190th Street in the Bronx?
Defendant: Yes, and University Avenue.
Court: All right. Did you do this on about, March
Court: Did you agree with someone else to do this?
Defendant: It was given to me, and said go to that
restaurant and wait there for me.
Court: And did you agree with this other person that
you would take the drugs and go to the restaurant?
Defendant: Yes. Because it was in a little bag, but I
knew that it was drugs afterwards when I — when he
gave it to me.
Court: Were you ...