The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Defendant Carlos Saltares ("Saltares") was charged in a
two-count indictment (the "Indictment") alleging that he: (1)
unlawfully, intentionally and knowingly possessed with intent to
distribute a controlled substance in violation of
21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (B); and (2) unlawfully,
willfully, and knowingly possessed a firearm in furtherance of a
drug trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A)(i) ("Section 924(c)"). Saltares pleaded guilty to
both counts on April 22, 2004.
Saltares filed the instant motion to withdraw his guilty plea
as to the second count on November 8, 2004. He contends that the
Court, in violation of Federal Rule of Criminal Procedure 11(b)
(3),*fn1 failed to ascertain that there was an adequate
factual basis for his guilty plea to the second count. For the
reasons stated below, the Court denies Saltares's motion.
On November 18, 2003, agents of the Drug Enforcement
Administration and officers of the New York Police Department
("NYPD") executed a warrant authorizing a search of the apartment
of Saltares's co-defendant, Sonia Hued ("Hued"). Saltares had
been storing some of his belongings in the apartment since early
2003 and stayed there occasionally. Both Saltares and Hued were
present at the time of the search.
The search uncovered six cardboard boxes near a window in the
living room that contained, among other things, substantial
amounts of heroin and approximately 40 rounds of 9-mm ammunition.
Outside the apartment, directly below the living room window, an
NYPD detective found additional heroin along with a loaded Smith
& Wesson 9-mm Lugar.
Hued, a minimal participant in the heroin trafficking scheme,
pleaded guilty to an information charging her with making her
apartment available for heroin trafficking. A month later,
Saltares pleaded guilty to both counts in the indictment against
him. Saltares now seeks to withdraw his guilty plea to the second
count based on the contention that the factual basis of his plea
allocution was insufficient to
support the charge of possessing a firearm in furtherance of a
Saltares does not deny that he possessed a firearm, nor that he
possessed heroin with the intent to distribute it. Rather,
Saltares argues that his plea to count two of the Indictment was
factually insufficient because he "never admitted in his plea
allocution to using the firearm in an active way to promote a
drug trafficking conspiracy." (Memorandum of Law in Support of
Pretrial Motions for Defendant Carlos Saltares, dated November 5,
2004, ("Def.'s Mem.") at 2.) Because Saltares's argument does not
address an amendment to Section 924(c) that broadened its
application to include facts such as those to which Saltares
admitted, his argument fails.
If a court concludes that "there was no factual basis for a
guilty plea after accepting it, the court should vacate the
plea. . . ." United States v. Smith, 160 F.3d 117, 121 (2d Cir.
1998). See also Godwin v. U.S., 687 F.2d 585, 590-591 (2d
Cir. 1982) ("The failure to inform [the defendant] of the nature
of the charges against him and the lack of a factual basis for
his plea in light of his denial of criminal intent
were substantial defects undermining the validity of the plea.").
In order to establish a sufficient factual basis for a guilty
plea, the court need not be satisfied that a jury would return a
verdict of guilty, but must "assure itself simply that the
conduct to which the defendant admits is in fact an offense under
the statutory provision under which he is pleading guilty."
United States v. Taveras, 133 F. Supp. 2d 298, 303 (S.D.N.Y.
2001) (quoting United States v. Maher, 108 F.3d 1513, 1524 (2d
Cir. 1997)) (internal quotation marks omitted). To establish the
factual basis, the court "may look to answers provided by counsel
for defense and government, the presentence report, or whatever
means is appropriate in a specific case so long as the factual
basis is put on the record." Smith, 160 F.3d at 121 (internal
citations, quotations and alterations omitted).
Section 924(c) contains two disjunctive prongs. First, a
defendant violates that section if he "(1) used or carried
a firearm, (2) did so knowingly, and (3) did so during and in
relation to a drug trafficking offense." United States v. Cox,
324 F.3d 77, 81 (2d Cir. 2003) (emphasis added). Second, a
violation of Section 924(c) occurs if the defendant possessed a