United States District Court, W.D. New York
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
On October 25, 2013, defendant Keith Lewis ("Lewis") pleaded guilty to a one-count Information charging a violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute and to distribute 280 grams or more of cocaine base. The Plea Agreement provided for a mandatory minimum term of imprisonment of 20 years with a maximum sentence of life. The enhanced penalties applied because of the drug quantity but also because of the defendant's prior drug felony conviction.
The Plea Agreement also contained a summary of the parties' understanding as to the United States Sentencing Guidelines ("Guidelines") application. Based on Lewis's Criminal History of IV and other calculations, the Guideline range was 292 to 365 months, a fine of $20, 000 to $2, 000, 000 and a period of supervised release of ten years. In addition, Section VII of the Plea Agreement contained a cooperation provision that upon the defendant's providing substantial assistance and fully comply with all the terms of the agreement, the Government agreed to move at sentencing to depart from the Guidelines under § 5K1.1 and/or the imposition of a sentence below the mandatory minimum term pursuant to 18 U.S.C. § 3553(e).
In fact, it appears that almost immediately after his arrest, Lewis engaged in several proffer sessions with the Government. During those sessions, Lewis admitted obtaining sizeable quantities of cocaine from several sources and admitted selling drugs out of drug houses, including 208 Conkey Avenue, Rochester, New York. On the day of her arrest, Lewis's wife, Mahogany Lewis, gave a detailed statement to the police inculpating both her and Keith Lewis in the purchase, and distribution of narcotics.
Now, with a new lawyer, approximately eleven months after the guilty plea, Lewis moves to withdraw the previously entered guilty plea (Dkt. #50). The Government has filed its Response (Dkt. #54) which includes, as Exhibit A, an affidavit from Joel Krane, Esq., Lewis's attorney at the time of the plea.
I have carefully reviewed the motion, the Government's Response, together with the Plea Agreement and the transcripts of court proceedings that occurred on October 23, 2013 (Dkt. #52) (hereinafter "Tr. October 23, 2013") and the transcript of the plea proceeding on October 25, 2013 (Dkt. #53) (hereinafter "Tr. October 25, 2013").
Because I believe that Lewis has failed to establish "a fair and just reason for requesting the withdrawal, " the motion to withdraw the plea is in all respects denied.
This case involves little more than buyer's remorse. There was a thorough discussion with Lewis on October 23, 2013 (Dkt. #52) concerning Lewis's decision whether or not to accept the proffered Plea Agreement. As discussed and pointed out there, because Lewis had several prior drug convictions, if he were to be convicted on the pending charges, he was advised by the prosecutor that he faced a sentence of mandatory life imprisonment (Tr. October 23, 2013, p. 3) and he admitted that when he entered the plea. Lewis's wife, Mahogany, also faced drug charges. Avoiding the potential mandatory life sentence was obviously a factor in Lewis's decision to plead guilty. As part of the plea, the Government did not file an Information pursuant to 21 U.S.C. § 851 concerning Lewis's multiple prior drug convictions. Had it done so, a mandatory life sentence would have been required.
At the time of the plea on October 25, 2013, Lewis specifically admitted to the Court that the fact that his wife got a better plea offer and that the Plea Agreement was such that Lewis did not face a mandatory life sentence were factors in Lewis's decision to take the plea (Tr. October 25, 2013, p. 17-18). Not only were those matter discussed at the time of the plea on October 25, 2013, but also two days earlier on October 23, 2013.
Lewis now claims that he should be entitled to withdraw his plea because he was provided ineffective assistance of counsel at the time of the plea and because he now asserts, in conclusory fashion, his innocence. There is no basis for either claim.
The standards for determining whether to allow withdrawal of a guilty plea at this stage, before sentencing, are well established. A motion to withdraw a plea before sentencing may be granted when the defendant demonstrates a "fair and just reason for requesting the withdrawal." Fed. R. Cr. P. 11(d)(2)(B). "While this standard implies that motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for withdrawal." United States v. Doe, 537 F.3d 204, 210 (2d Cir. 2008) (internal quotation marks omitted). "To determine whether the defendant has proffered a fair and just reason'" justifying withdrawal, "a district court should consider, inter alia: (1) the amount of time that has elapsed between the plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea." Id.
The Government's Response to the motion sets out clearly the time line and nature of this prosecution. It establishes the charges, the quantity of drugs involved, Mahogany Lewis's admissions implicating herself and her husband, as well as court proceedings both before and at the time of the plea, which set forth clearly the statutory penalties and the risks that Lewis faced should he gamble and proceed to trial. Lewis had multiple prior convictions and, in fact, admitted that he had gone to trial previously.
Defendant does not challenge the thoroughness of the Rule 11 colloquy and a perusal of the plea transcript (Tr. October 25, 2013) demonstrates that Lewis was fully advised of all the ...