United States v. LaFleur

676 F. Supp. 60, 1987 U.S. Dist. LEXIS 12312, 1987 WL 31757
CourtDistrict Court, D. Vermont
DecidedOctober 28, 1987
DocketCrim. A. No. 87-48-01
StatusPublished

This text of 676 F. Supp. 60 (United States v. LaFleur) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. LaFleur, 676 F. Supp. 60, 1987 U.S. Dist. LEXIS 12312, 1987 WL 31757 (D. Vt. 1987).

Opinion

OPINION AND ORDER

BILLINGS, District Judge.

By motion of September 24, 1987, the defendant, Stephen D. LaFleur moves to withdraw his guilty plea entered in this Court on September 8, 1987, and accepted on September 14, 1987. For the reasons set forth below, defendant’s motion is DENIED.

BACKGROUND

On July 14, 1987, a federal grand jury returned a one count indictment charging the defendant with a violation of 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon. On August 17, 1987, the government filed an Information Charging Prior Offenses to notify the defendant that it intended to seek the enhanced penalty provisions of 18 U.S.C. § 924(e)(1). Defendant, convicted of eight prior felonies, faced a mandatory period of incarceration of fifteen years if convicted and found subject to the enhanced penalties.

On September 8, 1987, defendant, appearing with counsel, indicated to this Court his desire to change his earlier plea and enter a plea of guilty. On the same day, the defendant, his counsel, and the Assistant United States Attorney (“AUSA”) signed and presented to the Court a written plea agreement.

[61]*61The Court conducted a full hearing pursuant to Fed.R.Cr.P. 11 (“Rule 11 hearing”) to ascertain defendant’s capacity to enter a guilty plea. After extensive questioning, the Court found the defendant competent to enter a plea.

On September 24, 1987, two working days prior to defendant’s scheduled sentencing, defendant moved to withdraw his guilty plea. By affidavit, defendant contends that a history of drug and alcohol use and a daily ingestion of marijuana while incarcerated after his most recent arrest impaired his judgment making him incapable of appreciating the ramifications of his guilty plea. Additionally, defendant asserts that he did not have sufficient time to review the plea agreement prior to entering his guilty plea.

By memorandum of October 14,1987, the government vigorously opposed defendant’s motion. This Court held a hearing on the motion on October 19, 1987.

DISCUSSION

The withdrawal of a guilty plea is provided for in Fed.R.Cr.P. 32(d) which states that:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, imposition of sentence is suspended, or disposition had under 18 U.S.C. § 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.

Thus in reviewing a motion to withdraw a guilty plea, a court must first ascertain that “fair and just” reasons exist before granting the motion. Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).

In United States v. Carr, 740 F.2d 339 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985), the Fifth Circuit Court of Appeals gleaned from a variety of circuits seven factors to weigh in deciding if “fair and just” reasons exist to allow the withdrawal of a guilty plea. The factors are:

[1] Whether or not the defendant has asserted his innocence; (2) whether or not the government would suffer prejudice if the withdrawal motion were granted; (3) whether or not the defendant has delayed in filing his withdrawal motion; (4) whether or not the withdrawal would substantially inconvenience the court; (5) whether or not close assistance of counsel was available; (6) whether or not the original plea was knowing and voluntary; and (7) whether or not the withdrawal would waste judicial resources, and, as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, or the reasons why a defendant delayed in making his withdrawal motion.

Id. at 343-44 (footnotes omitted).

In briefly applying each of the Carr factors to the instant case, it is evident that “fair and just” reasons do not exist to permit the plea withdrawal.

1. Assertion of Innocence.

Defendant entered his guilty plea on September 8, 1987. Neither in his affidavit, his motion to withdraw the guilty plea and the accompanying memorandum, nor at oral argument has defendant asserted his innocence to the crime charged. This circuit acknowledges the importance of an assertion of innocence in reviewing a motion to withdraw a guilty plea. United States v. Hughes, 325 F.2d 789 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964).

2. Prejudice to the Government.

Defendant claims the government will not be prejudiced by his withdrawal of his guilty plea. Lack of prejudice, however, is not a sufficient basis alone for granting defendant’s motion. United States v. Soft, 558 F.2d 1073, 1083 (2d Cir.1977). The government must only show prejudice to counter a showing by the defendant of a sufficient basis for granting defendant’s motion. Id. Absent a sufficient showing by the defendant, the issue [62]*62of prejudice to the government is irrelevant.

3. Delay in Filing Motion.

A speedy withdrawal of a guilty plea “is itself strong indication that the plea was entered in haste and confusion____” United States v. Barker, 514 F.2d 208, 222 (D.C.C.A.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Where a defendant delays withdrawing a plea and receives competent legal advice, a greater burden is placed upon the defendant to justify the motion. Id.

Defendant has never alleged ineffective assistance of counsel. Moreover, defendant’s motion came sixteen days after he entered his guilty plea — hardly a “swift change of heart.” Id.

4. Inconvenience to the Court.

Defendant filed the present motion two working days prior to the scheduled sentencing and after the probation department conducted a full pre-sentence investigation. Additionally, on the day of defendant’s scheduled trial, the same day he entered his original guilty plea, the Court had assembled a full panel of jurors. While the inconvenience of repeating this procedure would not justify denying defendant’s motion, the Court weighs this in its decision.

5. Assistance of Counsel.

As previously indicated, defendant never objected to his counsel but rather indicated his satisfaction with his representation at the Rule 11 hearing.

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Related

Kercheval v. United States
274 U.S. 220 (Supreme Court, 1927)
United States v. Panebianco
208 F.2d 238 (Second Circuit, 1954)
United States v. Paul M. Hughes
325 F.2d 789 (Second Circuit, 1964)
United States v. Howard E. Saft
558 F.2d 1073 (Second Circuit, 1977)
United States v. Michael Carr
740 F.2d 339 (Fifth Circuit, 1984)
United States v. Stephen Teller
762 F.2d 569 (Seventh Circuit, 1985)
United States v. Edward M. Benavides
793 F.2d 612 (Fifth Circuit, 1986)
United States v. Barker
514 F.2d 208 (D.C. Circuit, 1975)
Brockman v. South Carolina
421 U.S. 1014 (W.D. Pennsylvania, 1975)
Golden State Transit Corp. v. City of Los Angeles
471 U.S. 1003 (Supreme Court, 1985)
Barksdale v. United States
479 U.S. 868 (Supreme Court, 1986)

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Bluebook (online)
676 F. Supp. 60, 1987 U.S. Dist. LEXIS 12312, 1987 WL 31757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lafleur-vtd-1987.