The opinion of the court was delivered by: John F. Keenan, United States District Judge
On November 22, 2005, the defendant Daniel Baptista ("Baptista") pleaded guilty to a one-count Indictment charging Baptista with conspiring to possess with intent to distribute approximately 99 grams of "crack" cocaine. Baptista now moves to withdraw his guilty plea. The Government objects.
In a recorded conversation on April 29, 2004 on a street in upper Manhattan, a confidential informant ("CI") sought to purchase 100 grams of "crack" cocaine from Pedro Mercado ("Mercado"). Mercado told the CI that it might take some time because the "crack" had to be cooked. Mercado then summoned Baptista, who arrived shortly. Mercado, Baptista, and the CI discussed payment for the drugs.
After some time passed and the drugs had not arrived, Baptista told the CI "they're going to bring it, you see, to test it after it's cooked, . . ." Baptista then entered a building at 3609 Broadway with Robert Berroa ("Berroa"). Soon thereafter, Berroa and Baptitsa exited the building together. Berroa, with Baptista at his side, handed the drugs to the CI and told him that $25 would be refunded to the CI because the drugs were "a gram short, there's 99." After the purchase was completed, the CI turned the drugs over to law enforcement officials, and the drugs tested positive for cocaine base.
Mercado, Berroa, and Baptista were subsequently charged in Indictment 05 Cr. 53, with violating 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). All three co-defendants pleaded guilty. Before Baptista entered his guilty plea, his attorney informed the Court that Baptista "was willing to admit that he sold to the conspirators 99 grams of cocaine powder," rather than "crack" cocaine as charged in the Indictment. (Tr. 2.) During the plea proceedings, Baptista allocuted: "I am responsible for having sold 99 grams of cocaine. Only cocaine." (Tr. 17.) Baptista's attorney and the Government indicated that the plea allocution was adequate, and the Court accepted the plea. (Tr. 19.)
A. Conviction and Sentencing Under Title 21 U.S.C. § 841
Baptista was charged with violating § 841(a)(1), which makes it illegal "for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."
Section 841(b) contains the penalty provisions for § 841(a). Because the Indictment charges 99 grams or more of "crack", the defendant faces a ten-year statutory mandatory minimum, pursuant to § 841(b)(1)(A). Plain cocaine in this amount, which is not "crack," does not trigger the mandatory minimum under § 841(b)(1)(A).
Before the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), courts construed § 841(a) as encompassing the entire corpus delicti of the drug offense. United States v. Velasquez, 28 F.3d 2, 4 (2d Cir. 1994). Drug quantity under § 841(b), was taken into account only at the sentencing stage by the judge. Id. At that time, "[c]onviction rest[ed] solely on the knowing possession of some quantity, however large or small, of illicit drugs." Id.
In Apprendi, the Supreme Court held that factors related to sentencing need to be submitted to the jury and proved beyond a reasonable doubt when the factor "increase[s] the penalty for a crime beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490. The Second Circuit later clarified Apprendi's impact on drug cases under § 841. The Court held that submitting § 841(a) to the jury and reserving § 841(b) determinations for the judge poses no Apprendi problems "as long as the sentence does not exceed the otherwise applicable ...