The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The defendants James Jesus Valencia Munevar and Mario Alberto Valencia Munevar have moved to withdraw from their plea agreements but have not moved to withdraw their pleas of guilty. The Court held an evidentiary hearing on June 28, 2010, at which the prior counsel for each of the defendants testified. The Court has considered all of the evidence submitted as well as the testimony of the witnesses. The Court now makes the following findings of fact and reaches the following conclusions of law.
Both James Valencia Munevar and Mario Valencia Munevar pleaded guilty on June 28, 2007 to Count 2 of the superseding indictment in this case, which charged them and others with having conspired, in violation of 21 U.S.C. §846, to distribute and to possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). The pleas occurred on the date set for the final pre-trial conference. The trial was scheduled to begin shortly thereafter. Each plea was pursuant to a plea agreement dated June 27, 2007. The plea agreement for James Valencia Munevar provided that the Guideline Offense Level was 35 (based on a base offense level of 38, because the amount of cocaine exceeded 150 kilograms, minus 3 points for acceptance of responsibility), the Criminal History Category was I, and the Stipulated Guidelines Range was 168 to 210 months. The plea agreement for Mario Valencia Munevar provided that the Guideline Offense Level was 33 (based on a base offense level of 36, because the amount of cocaine was between 50 and 150 kilograms, minus 3 points for acceptance of responsibility), the Criminal History Category was I, and the Stipulated Guidelines Range was 135 to 168 months.
Each plea agreement provided that: "The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range . . . is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein." Each plea agreement also provided that the parties agreed that a sentence within the Stipulated Guidelines Range would constitute a reasonable sentence, although either party could seek a sentence outside the Stipulated Guidelines Range. The plea agreements also contained a waiver of the right to appeal or litigate under 28 U.S.C. § 2255 or § 2241 any sentence within the Stipulated Guidelines Range.
At the plea allocutions, James Valencia Munevar was represented by Matthew Kluger and Mario Valencia Munevar was represented by Marvin Schechter. During their plea allocutions, each defendant swore under oath the he had had a sufficient time to discuss his case with his lawyer and to discuss the consequences of pleading guilty and that he was satisfied with his lawyer and the lawyer's representation of him. Further, during the plea allocutions, each defendant confirmed, under oath, among other things, that his agreement had been translated for him; that he had reviewed the agreement with his lawyer before signing it; that he understood the agreement before signing it; and that no one had offered him any inducements, threatened him, or forced him to plead guilty or to enter into the plea agreement. The Court also reviewed with each defendant the Stipulated Guidelines Range in the plea agreement and confirmed that each defendant understood that he had given up his right to appeal or otherwise challenge in a habeas corpus proceeding any sentence within that range. The Court then accepted the guilty pleas with specific findings that the pleas were knowing and voluntary.
Following their guilty pleas, each of the defendants made "safety valve" proffers to the Government. The Government determined that it would not support a safety valve adjustment to the Stipulated Guidelines Range for James Valencia Munevar because, in the Government's view, he had made admissions that indicated that he was in a supervisory position, and thus not eligible for a two-level downward safety valve adjustment, now codified at U.S.S.G. § 2D1.1(b)(11).
As a result of the safety-valve proffer by Mario Valencia Munevar, the Government determined that he did qualify for the safety-valve downward adjustment, but that the amount of cocaine for which he was responsible was in excess of 150 kilograms. Mario Valencia Munevar then entered into a new sentencing agreement with the Government. This "Post-Plea Agreement," dated May 5, 2008, provided that the drug weight was in excess of 150 kilograms of cocaine, resulting in a base offense level of 38; and that the reductions of 2 levels for the safety valve adjustment, and 3 points for acceptance of responsibility, provided a total offense level of 33. Given Mario Valencia Munevar's Criminal History Category of I, this produced a Stipulated Guidelines Range of 135 to 168 months' imprisonment, the same range provided in the original plea agreement. The Post-Plea Agreement contained the same provisions precluding the parties from arguing for a departure or adjustment from the Stipulated Guidelines Range and acknowledging that a sentence within that range was reasonable, but allowing the parties to argue for a sentence outside that range. The Post-Plea Agreement also provided the same waiver of the right to appeal or otherwise challenge in a habeas corpus proceeding any sentence within the Stipulated Guidelines Range. Mario Valencia Munevar was represented in connection with the Post-Plea Agreement by Salvador Delgado, the same lawyer who continues to represent the defendant, and as to whom the defendant has never expressed any dissatisfaction.
The Court held a proceeding on May 8, 2008, at which Mario Valencia Munevar, represented by Mr. Delgado, was examined under oath as to the Post-Plea Agreement. The defendant indicated that he was satisfied with Mr. Delgado and his representation of him. The defendant testified under oath that he had signed the agreement, that it was translated for him before he signed it, that he had discussed it with his attorney, that he fully understood it, and that no one had offered him any inducements or threatened or forced him to enter into the agreement. The Court expressly noted that the Stipulated Guidelines Range was 135 to 168 months imprisonment, and that the defendant had given up his right to appeal or otherwise challenge any sentence within that range. The defense counsel stated that he had reviewed that with the defendant and the defendant indicated that he understood. The Court then expressly found that the defendant had knowingly and voluntarily entered into the sentencing agreement fully aware of all of his rights.
The defendants then began to send a series of pro se submissions to the Court asking for sentencing adjustments that were prohibited by the Plea Agreement, in the case of James Valencia Munevar, and the original Plea Agreement and the Post-Plea Agreement, in the case of Mario Valencia Munevar. Ultimately, each defendant has sought to be sentenced based on their guilty plea without any plea agreement. James Valencia Munevar is now represented by Louis Fasulo. Mario Valencia Munevar continues to be represented by Salvador Delgado.
To withdraw from a plea agreement, a defendant must show a "fair and just reason." United States v. Lopez, 385 F.3d 245, 255 (2d Cir. 2004). The Court should consider whether the defendant has shown "credible evidence" that he did not "freely and voluntarily enter into the plea agreement, either because he was coerced or improperly induced to accept its terms, or because he misunderstood them." Id. The Court should also consider any prejudice that would be suffered by the Government in litigating the defendant's sentence. Id. Moreover, there is a "strong presumption of verity" that attaches to "[s]olemn declarations in open court" to the effect that defendants understood their plea agreements and entered into them freely and voluntarily. United States v. Carreto, 583 F.3d 152, 158 (2d Cir. 2009) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
In this case, each of the defendants submitted similar affidavits, each dated May 20, 2009, alleging that they did not knowingly and voluntarily enter into the original plea agreements. The Court held an evidentiary hearing and heard the testimony of the lawyers who represented the defendants at the time they entered into the original plea agreements. They credibly denied the allegations in the defendants' affidavits and explained that they were prepared to go to trial if the defendants had decided not to enter into the plea agreements shortly before trial, but that the defendants, after having the plea agreements translated for them, entered into the plea agreements with full awareness of the terms of the agreements. That testimony was credible and supports the sworn ...