The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM DECISION AND ORDER
On July 20, 2007, defendant Edwin Montanez entered a plea of guilty to count one of the superseding indictment, which charged him with conspiracy to engage in a pattern of racketeering activity as part of his membership in the Brighton Brigade Gang, in violation of 18 U.S.C. § 1962(d). On April 21, 2008, the eve of sentencing, defendant filed a motion to withdraw his plea. The government opposes defendant's motion.
Defendant was charged in a two count indictment with: (1) conspiracy to engage in a pattern of racketeering activity as part of his membership in the Brighton Brigade Gang, in violation of 18 U.S.C. § 1962(d); and (2) threatening a cooperating co-defendant with the intent to prevent him from testifying against defendant at trial, in violation of 18 U.S.C. § 1512(b)(1). On July 20, 2007, defendant pled guilty to count one and entered a plea agreement with the government pursuant to Rule 11(c)(1)(C)*fn1 of the Federal Rules of Criminal Procedure, in which he agreed that "the sentence of 235 months of imprisonment, a term or [sic] supervised release of 5 years, no fine, and a special assessment of $100 is the appropriate disposition of this case". Plea Agreement, ¶ 3. A footnote further explains:
This term of imprisonment is arrived at by holding the Defendant accountable as follows: (1) Drug offense level of 30 (35 to 50 grams of crack) pursuant to U.S.S.G. § 2D1.1)[sic]; (2) plus two points pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon (ie: hand guns), directly or indirectly, in connection with the gang's drug trafficking activity; (3) plus two points for his occasional organizational role with respect to various acts of gang violence pursuant to U.S.S.G. § 3B1.1(c); and (4) a two point enhancement for obstructing the administration of justice pursuant to U.S.S.G. § 3C1.1 for his witness tampering/intimidation as noted in Count Two of the Indictment. The total offense level is thus 36, from which three points are deducted for acceptance of responsibility, for a Total Offense level of 33, with a Criminal History Category of VI, and a sentencing range of 235 to 293 months.
Plea Agreement, ¶ 3, n.1.
During the change of plea hearing on July 20, 2007, the Court accepted defendant's plea of guilty after an extensive colloquy with defendant, defense counsel, and the government. The Court did not, at the time, accept or reject, the plea agreement, but deferred a decision, see Rule 11(c)(3)(A) ("To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report"), and directed Probation to prepare and submit a presentence report.
After defendant entered his plea of guilty, the Sentencing Commission implemented a two-point reduction of the base offense level for crack offenses, see Amendments to the Sentencing Guidelines for the United States Courts, 72 Fed.Reg. 28,571-28, 572 (2007), and subsequently voted to apply the amendment retroactively. See U.S.S.G. § 1B1.10(c). Because defendant pled guilty to a crack offense, the parties entered into a "proposed amendment to plea agreement", filed February 21, 2008, which states, in relevant part:
The Defendant contends, among other things, that he should now receive the benefit of that reduction at sentencing. He further contends that because the sentence calculated above was at the low end of the applicable Guideline range (235 months), his revised sentence should be 188 months, which is at the low end of the Defendant's proposed revised guideline range of 188 to 235 months (Offense Level 31, Criminal History Category VI).
The Government contends, among other things, that since the Defendant entered into his plea pursuant to [Rule] 11(c)(1)(C), he is barred from seeking a lower sentence. The government further asserts that even if the two point crack reduction were awarded in this case, the revised Guidelines would still encompass a 235 month sentence.
In an effort to bridge these different positions and to avoid further potential litigation, the parties have agreed to amend paragraph 3 of the Plea Agreement by revising the Defendant's agreed upon sentence, pursuant to [Rule] 11(c)(1)(C), to 210 months imprisonment. This revised sentence represents a compromise of the parties' respective positions by reaching a sentence in the middle of the Defendant's proposed Guidelines range. There are no other proposed revisions to the original plea agreement. The parties agree that all other aspects of the original Plea Agreement will remain in full force.
Proposed Amendment to Plea Agreement, pp. 2-3. Defendant was scheduled to be sentenced on April 22, 2008. On April 21, 2008, defendant moved to withdraw his plea of guilty, accordingly, the Court stayed defendant's sentence ...