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U.S. v. SALTARES

February 9, 2005.

UNITED STATES OF AMERICA
v.
CARLOS SALTARES, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

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. Page 2

  I. BACKGROUND*fn2

  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 Page 3 support the charge of possessing a firearm in furtherance of a drug conspiracy.

  II. DISCUSSION

  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.

  A. LEGAL STANDARDS

  1. Plea Withdrawal

  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 Page 4 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).

  2. Firearm Possession

  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 firearm ...


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