UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. Criminal Action No. 19-203 (CKK) EDWARD MAGRUDER, Defendant.
MEMORANDUM OPINION (July 20, 2020) In this criminal action, Defendant Edward Magruder pled guilty to unlawful possession
with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A). Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure,
Defendant Magruder and the Government agreed that a sentence of 144 months to 180 months of
incarceration, followed by five years of supervised release, was an appropriate sentence. Prior to
sentencing, Defendant Magruder has filed a Motion to Withdraw Guilty Plea. ECF No. 27.
Defendant Magruder argues that he should be permitted to withdraw his guilty plea because he
had ineffective assistance of counsel based on his prior counsel’s failure to obtain a particular
item of discovery and because he was coerced into accepting the Rule 11(c)(1)(C) plea. The
Government opposes withdrawal of the guilty plea.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a
1 The Court’s consideration has focused on the following documents: • Def.’s Mot. to Withdraw Guilty Plea (“Def.’s Mot.), ECF No. 27; • Gov.’s Opp’n to Def.’s Mot. to Withdraw Guilty Plea (“Gov.’s Opp’n”), ECF No. 28; • Def.’s Reply to Opp’n to Mot. to Withdraw Guilty Plea (“Def.’s Reply”), ECF No. 29; • Def.’s Suppl. to Mot. to Withdraw Guilty Plea (“Def.’s Supp.”), ECF No. 30; • Gov.’s Suppl. to Opp’n to Def.’s Mot. to Withdraw Guilty Plea (“Gov.’s Supp.”), ECF No. 31; and whole, the Court DENIES Defendant Magruder’s Motion to withdraw his guilty plea. The Court
concludes Defendant Magruder has not presented a fair and just reason for granting the
withdrawal.
I. LEGAL STANDARD
Under Federal Rule of Criminal Procedure 11, a defendant is permitted, before a sentence
is imposed, to withdraw a guilty plea if the defendant can show “a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). While presentence withdrawal motions
should be “‘liberally granted,’ they are ‘not granted as a matter of right.’” United States v.
Thomas, 541 F. Supp. 2d 18, 23 (D.D.C. 2008) (quoting United States v. Ahn, 231 F.3d 26, 30
(D.C. Cir. 2000)). When ruling on a motion to withdraw a guilty plea, courts in this Circuit
consider the following factors:2 “(1) whether the defendant asserted a viable claim of innocence;
(2) whether the delay between the guilty plea and the motion to withdraw has substantially
prejudiced the government’s ability to prosecute the case; and (3) whether the guilty plea was
somehow tainted.” United States v. Taylor, 139 F.3d 924, 929 (D.C. Cir. 1998) (internal
quotation marks omitted). The third factor is viewed as the “most important.” Id. (internal
• Def.’s Reply to Gov.’s Suppl. to Opp’n to Mot. to Withdraw Guilty Plea (“Def.’s Reply to Supp.”), ECF No. 32. 2 Defendant Magruder argues that these factors are not applicable because they are “considered by the Appellate Court to determine if the court abused its discretion in not permitting a defendant to withdraw his guilty plea.” Def.’s Reply, ECF No. 29, 1. While the United States Court of Appeals for the District of Columbia Circuit does consider these factors in such a context, a number of district courts have still applied the factors when determining whether or not a defendant has shown a fair and just reason for withdrawal of a guilty plea. See, e.g., United States v. Thomas, 541 F. Supp. 2d 18, 23 (D.D.C. 2008) (“[C]ourts look at [these] factors in deciding whether to grant a motion to withdraw a plea.”); United States v. Sibblies, 562 F. Supp. 2d 1, 3 (D.D.C. 2008) (same); United States v. Tolson, 372 F. Supp. 2d 1, 9 (D.D.C. 2005) (“The D.C. Circuit has recently reiterated this jurisdiction’s longstanding rule that a court adjudicating a motion to withdraw a guilty plea prior to sentencing must consider [these factors].”). 2 quotation marks omitted). In the present case, the Government does not claim that it would be
“substantially prejudiced” by the withdrawal of Defendant Magruder’s guilty plea. Gov.’s
Opp’n, ECF No. 28, 9 n.5. Therefore, this analysis focuses on the first and third factors,
beginning with the third factor as it is the most influential. See United States v. Cray, 47 F.3d
1203, 1208 (D.C. Cir. 1995) (adopting “more structured inquiry-focusing first on the most
important, indeed determinative factor”).
II. FACTUAL BACKGROUND
On June 10, 2019, a criminal complaint was filed against Defendant Magruder, stating
that he violated 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) by possessing with intent to distribute a
mixture and substance containing one kilogram or more of heroin. ECF No. 1. That same day,
Defendant Magruder was arrested and made an initial appearance before Magistrate Judge Robin
Meriweather. Defendant Magruder was appointed counsel and was held in temporary detention.
On June 13, 2019, a detention hearing was held before Magistrate Judge Meriweather, and
Defendant Magruder consented to detention.
On June 24, 2019, this Court held its first status conference with Defendant Magruder.
Defense counsel indicated that he had received but had not yet reviewed the discovery and
requested an additional 30 days. June 24, 2019 Minute Order. The Court held the next status
conference on August 1, 2019, during which Defense counsel requested additional time to
review discovery and to determine how to proceed. Aug. 2, 2019 Minute Order. The parties
returned to the Court on September 13, 2019. At this time, Defendant Magruder indicated that he
intended to proceed to trial and the Court ordered the parties to propose pre-trial deadlines. Sept.
13, 2019 Minute Order. Also on that day, the Court ordered the Probation Office to complete a
3 criminal history calculation so that the parties would have access to the relevant information on
the advisory sentencing guidelines prior to trial. ECF No. 6.
When the parties returned to the Court for a status conference on October 4, 2019,
Defense counsel indicated that Defendant Magruder had been provided with a plea offer.
Defendant Magruder required additional time to consider the plea offer. Oct. 4, 2019 Minute
Order.
On October 8, 2019, the parties conducted another status conference. At this status
conference, Defendant Magruder indicated that he intended to accept the Government’s plea
offer. The plea offer, which was later formally accepted, was a Rule 11(c)(1)(C) plea of 144
to180 months, with a mandatory minimum of 10 years. Oct. 8, 2019 Minute Order. During the
status conference, Defense counsel explained that “Mr. Magruder appears to have at least two
prior convictions that, if the Government had filed the 851 notices, would have put him in
jeopardy of receiving a mandatory minimum term of incarceration of 25 years.” Tr. Oct. 8, 2019,
ECF No. 19, 4:20-23. Even absent a 21 U.S.C. § 851 notice, the Government stated that if
Defendant Magruder pled to the indictment his advisory sentencing guidelines range would be
262 to 327 months, with a mandatory minimum of 10 years. Id. at 6:14-15. Defense counsel
explained that the plea offer would reduce the incarceration time “a considerable amount.” Id. at
5:1. Defendant Magruder affirmed that he had received and reviewed the evidence against him.
Id. at 5:6-9.
During the next October 22, 2019 status conference, the Court explained the Probation
Office’s findings on Defendant Magruder’s criminal history calculation. The Court also stated
that, as a career offender, Defendant Magruder would likely be eligible for a 21 U.S.C. § 851
4 notice by the Government, increasing the mandatory minimum sentence to 25 years. During the
status conference, Defendant Magruder expressed some confusion as to the Rule 11(c)(1)(C)
plea. Tr. Oct. 22, 2019, ECF No. 20, 7:13-14. The Court explained that Defendant Magruder
faced a mandatory minimum of 10 years based on his charge. If the Government filed a 21
U.S.C. § 851 notice, for which it appeared Defendant Magruder was eligible, the mandatory
minimum would move up to 25 years. Id. at 8:3-20. The Court stated that it had no control over
the mandatory minimums and could not sentence Defendant Magruder to a lesser sentence than
the mandatory minimum. Id. at 9:3-4. The Court further explained that if the Rule 11(c)(1)(C)
plea was accepted, Defendant Magruder’s sentence would have to be between 144 and 180
months. Id. at 8:11-15. The Court explained to Defendant Magruder “this is your decision. Your
counsel can go over the evidence with you, can go over what the choices are that you have, what
the consequences are, can give you advice; and you can decide to accept it or not.” Id. at 12:12-
15. After reviewing the effect of the plea offer, Defendant Magruder confirmed that all requested
discovery had been provided. Id. at 12:5-9. Defendant Magruder further stated that he was
prepared to go forward with the plea agreement. Id. at 13:14-17.
On October 25, 2019, Defendant Magruder was placed under oath and pled guilty,
accepting the Rule 11(c)(1)(C) plea agreement, setting a sentence of 144 to 180 months. ECF
No. 13. The Court accepted the plea but held in abeyance accepting the proposed sentence until
after the Court could review the presentence report.
On November 20, 2019, the Court received a letter from Defendant Magruder which was
dated October 25, 2019. ECF No. 17. In the letter, Defendant Magruder stated that he was not
satisfied with his prior counsel based, in part, on his counsel’s alleged failure to properly
5 investigate the case. Defendant Magruder also expressed some confusion as to whether or not his
plea agreement contained a mandatory minimum of 10 years. Id. That same day, Defendant
Magruder’s counsel filed a motion to withdraw. ECF No. 15.
On December 2, 2019, the Court appointed Defendant Magruder new counsel and set
another status conference in the case, allowing new counsel adequate time to prepare. The Court
further stayed the deadlines for the sentencing briefing. Dec. 6, 2019 Minute Order. On
December 12, 2019, the Court held a status conference where Defendant Magruder was
represented by his new counsel. Defendant Magruder expressed that he was satisfied with his
new counsel. The Court set a further status conference to allow Defendant Magruder time to
speak with his new counsel about how to proceed. Dec. 12, 2019 Minute Order. On January 27,
2020, the Court held another status conference at which Defendant Magruder indicated his
intention to file a motion to withdraw his guilty plea. The Court set a briefing schedule. Jan. 27,
2020 Minute Order.
Prior to the filing of a motion to withdraw his guilty plea, Defendant Magruder’s new
counsel filed a motion to withdraw due to a fundamental disagreement on the posture of the case.
ECF No. 21. On March 6, 2020, the Court granted the motion to withdraw and again appointed
new counsel for Defendant Magruder. Mar. 6, 2020 Minute Order. The Court further vacated the
briefing schedule for the motion to withdraw and set a new status conference date. Id.
Prior to the next status conference, the Court was hindered by the COVID-19 restrictions.
In Re: Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic,
Standing Order 20-9(BAH), Mar. 16, 2020. The Court ordered Defendant Magruder to file a
notice indicating if he intended to proceed with moving to withdraw his guilty plea so that the
6 Court could set further proceedings. Mar. 17, 2020 Minute Order.
On May 6, 2020, Defendant Magruder filed a Notice indicating his intent to move to
withdraw his guilty plea. ECF No. 26. The Court set a briefing schedule for Defendant
Magruder’s Motion to withdraw his guilty plea, and that motion is currently before the Court.
ECF No. 27.
III. DISCUSSION
Defendant Magruder contends that he should be able to withdraw his guilty plea because
his prior counsel was ineffective for failing to discover a particular piece of discovery and
because he was coerced into accepting a Rule 11(c)(1)(C) plea. The Court concludes that neither
argument provides grounds for withdrawing his guilty plea.
A. Tainted Plea
If a plea is tainted because it was entered unconstitutionally, or contrary to Rule 11
procedures, then the “standard [for allowing withdrawal of a plea] is very lenient.” United States
v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). Under such circumstances, pleas “should almost
always be permitted to be withdrawn,” regardless if the defendant asserted his legal innocence.
Id. A plea is “constitutionally valid” only if it “represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” United States v. McCoy, 215
F.3d 102, 107 (D.C. Cir. 2000) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)) (internal
quotation marks omitted).
First, Defendant Magruder argues that his plea was tainted because it was not voluntary
or intelligent due to his prior counsel’s failure to properly investigate at least one piece of
discovery. To withdraw a guilty plea on the basis of ineffective assistance of counsel, a
7 defendant must satisfy the two-prong test introduced in Strickland v. Washington, 466 U.S. 688
(1984). First, the defendant must show that the “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688-89. Second, the defendant must prove
that “the deficient performance prejudiced the defense.” Id. at 687.
As the first step under Strickland, Defendant Magruder must show that his prior counsel’s
performance was deficient. To show deficient performance, Defendant Magruder must
demonstrate that his “counsel’s performance ‘fell below an objective standard of reasonableness’
by identifying specific ‘acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment.’” Taylor, 139 F.3d at 929 (quoting Strickland, 466 U.S. at
687-88). It is well-established that an attorney has a “duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466
U.S. at 691. Therefore, if the alleged deficient conduct is a failure to fully investigate, then the
attorney’s decision “must be directly assessed for reasonableness in all circumstances, applying a
heavy measure of deference to counsel’s judgment.” Id.
In the present case, Defendant Magruder represents that his prior counsel was deficient
by failing to provide him with the relevant discovery; namely, a May 10, 2019 affidavit that was
submitted in support of the warrant to obtain his geolocation data. Def.’s Mot., ECF No. 27, 4-5.
Defendant Magruder states that he received the affidavit only after the plea hearing and upon
communicating with counsel for the Government. Def.’s Reply, ECF No. 29, 2. Therefore,
Defendant Magruder claims that his guilty plea “was not a knowing plea without the full gambit
of material which only recently came to light.” Id.
For purposes of this Memorandum Opinion, the Court will assume that Defense counsel’s
8 failure to provide Defendant Magruder with relevant discovery—the May 10, 2019 affidavit—
was deficient. However, the Court finds that Defendant Magruder cannot show the second
Strickland prong—that he was prejudiced by this error. To show prejudice, the defendant must
show that “there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. In circumstances
where the counsel’s deficient conduct is a “failure to investigate or discover potentially
exculpatory evidence, the determination of whether the error ‘prejudiced’ the defendant . . . will
depend on the likelihood that discovery of the evidence would have led counsel to change his
recommendation as to the plea.” Id. This inquiry “will depend in large part on a prediction
whether the evidence likely would have changed the outcome of a trial.” Id.
Defendant Magruder argues that if he had been provided the May 10, 2019 affidavit, he
could have identified two errors. First, that the seven outgoing calls made to the phone of Mr.
Jhon Jairo Mosquera-Asprilla, a Colombian drug contact, occurred in March 2019, not in April
2019; and second, that the claimed 16-minute call between Defendant Magruder and Mr.
Mosquera-Asprilla on April 22, 2019, actually occurred for 13.5 minutes on March 22, 2019.
Def.’s Mot., ECF No. 27, 5. According to Defendant Magruder, the discovery of these errors
would have led him to file “a motion to suppress the warrant with a viable Frank’s issue
ultimately defeating the probable cause leading to the signing off on the warrant.” Id. at 7.
Lacking probable cause for a warrant, Defendant Magruder contends that he would have been
“in a position to suppress the drugs seized on June 8, 2019, and he would have been in a position
to have the charge dismissed against him.” Id.
The Court disagrees with Defendant Magruder’s theory. Under Franks v. Delaware, in
9 order to successfully challenge an affidavit, the defendant must show that the false statements in
the document were made by the affiant “knowingly and intentionally, or with reckless disregard
for the truth” and that the false statements were “necessary to the finding of probable cause.” 438
U.S. 154, 155 (1978). Notably, “[a]llegations of negligence or innocent mistake are insufficient.”
Id. at 171; see also United States v. Lopez, No. 1:17-CR-269, 2018 WL 1290415, at *10 (N.D.
Ohio Mar. 13, 2018), aff’d, 769 F. App’x 288 (6th Cir. 2019) (holding a single false statement is
insufficient to support a Franks hearing); United States v. West, 503 F. Supp. 2d 192, 194
(D.D.C. 2007) (refusing a Franks hearing where the mistake in the affidavit was small and not
material); United States v. Ali, 870 F. Supp. 2d 10, 32 (D.D.C. 2012) (denying a Franks hearing
where potentially negligent omissions in an affidavit were not material).
Though Defendant Magruder established that the affidavit contained two errors,
Defendant Magruder does not cite to any legal authority that suggests these errors would have
been sufficient for a Franks motion. Defendant Magruder merely alleges that the errors were a
“deception on the part of the [affiant], not a reasonable belief.” Def.’s Reply, ECF No. 29, 5.
Nonetheless, the nature of the errors suggests that they were “typographical errors,” as the
Government states in its opposition. Gov.’s Opp’n, ECF No. 29, 6 n.4. The affiant wrote “April,”
rather than “March,” and “16-minutes,” instead of “13.5 minutes.” Defendant Magruder has
further failed to show that these small errors were in any way material to the finding of probable
cause. That the calls were made a month prior and that one of the calls lasted approximately two
and a half minutes less than stated is unlikely to defeat probable cause. Such errors, while
avoidable and possibly negligent on the part of the affiant, do not meet the high standard set forth
in Franks. Therefore, despite Defense counsel’s failure to discover these errors, Defendant
10 Magruder has not proven that he was prejudiced by this failure as his Franks motion would have
likely been denied. United States v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997) (noting a
lawyer is not ineffective if he fails to file a frivolous motion).3
In addition to arguing that disclosure of the May 10, 2019 affidavit would have led to the
suppression of probable cause for the warrant, Defendant Magruder also argues that if he had
seen the affidavit earlier, he could have requested access to his phone records to show that the
March 22, 2019, 13.5-minute phone call to Mr. Mosquera-Asprilla did not happen. When
Defendant Magruder recently requested his phone records, he was informed that the phone
company does not maintain records for more than one year. As such, Defendant Magruder argues
that he “lost the chance to defend himself and potentially present to the Court evidence that the
Affidavit contained materially false averments resulting in no probable cause for the geolocation
data warrant, namely that no call was made in March to Mosquera’s number.” Def.’s Mot., ECF
No. 27, 5.
However, Defendant Magruder provides no evidence in support of his argument that the
March 22, 2019, 13.5-minute phone call did not occur. His argument is entirely speculative. The
Government has produced telephone records showing that on March 22, 2019, Defendant
Magruder called Mr. Mosquera-Asprilla’s phone number and that the call lasted approximately
13.5 minutes. See Ex. 2, ECF No. 28-2. Defendant Magruder’s base speculation is insufficient to
3 The Court notes that the case cited in Defendant Magruder’s supplement, United States v. Jones, 565 U.S. 400 (2012), does not change this analysis. See ECF No. 30. Jones concerned the installation of a Global-Positioning-System (“GPS”) tracking device on a vehicle for approximately 28 days without a valid warrant. See generally 565 U.S. 400. Defendant Magruder contends that Jones stands for the proposition that “even with a warrant, GPS monitoring for more than 28 days is unconstitutional.” ECF No. 30, 2. However, Defendant Magruder misreads Jones as it made no findings as to the constitutionality of GPS tracking with a warrant. 11 overcome the Government’s evidence that he made a 13.5-minute phone call to the number in
question on March 22, 2019. As such, Defendant Magruder has failed to show that he was
prejudiced by his inability to access his own phone records due to the lapse in time.
In addition to finding that Defendant Magruder’s lack of access to this discovery material
does not constitute a Strickland violation which tainted his plea, the Court further finds that such
violation does not render Defendant Magruder’s plea not knowing or voluntary. At the October
25, 2019 plea hearing, the Court conducted a thorough inquiry with Defendant Magruder,
explained the rights that he was waiving through pleading guilty, and reviewed the terms of the
plea agreement. See generally Ex. 3, ECF No. 28-3. The Court ensured that Defendant Magruder
was competent. The Court further specifically inquired as to whether or not Defendant Magruder
had reviewed the plea materials with Defense counsel. Id. at 7:5-11. Under oath, Defendant
Magruder affirmed that he was “completely satisfied with the services of [his] attorney.” Id. at 7:
24-8:1.
Moreover, as has been explained, Defendant Magruder has pointed to no material
discovery which was not provided to him. On October 22, 2019, Defendant Magruder affirmed
that every item of discovery that he or his prior counsel had requested had been provided. Tr.
Oct. 22, 2019, ECF No. 20, 12:1-9. Now, the only specific discovery that Defendant Magruder
argues he should have received is the May 10, 2019 affidavit. However, this affidavit, and the
errors contained in it, were not material as it does not tend to show that Defendant Magruder was
innocent or that probable cause did not exist for the warrant. Additionally, the Government has
provided evidence that Defendant Magruder’s prior counsel was provided with all the relevant
discovery, including the same phone records that were provided to his current counsel for the
12 purposes of this Motion showing that Defendant Magruder made the calls to Mr. Mosquera-
Asprilla. See Exs. 5, 6, 7, ECF No. 31-1.4
Second, Defendant Magruder argues that his plea was tainted because he was “coerced
into accepting the plea because the prosecution threatened to file an 18 U.S.C. § 851
enhancement to his mandatory minimum which would have increased the mandatory minimum
he was facing.” Def.’s Reply, ECF No. 29, 3. Additionally, Defendant Magruder asserts that he
“thought he had no choice but to accept such an offer rather than seek to negotiate an open ended
plea which would have given him the chance to argue for a sentence of 10 years rather than be
limited to not less than 12 years.” Id.
Defendant Magruder offers no legal support for the suggestion that the presence of an
enhancement would convert a valid guilty plea into an involuntary one. In this Circuit, “[o]nly
physical harm, threats of harassment, misrepresentation, or . . . ‘bribes’ . . . render a guilty plea
legally involuntary.” United States v. Pollard, 959 F.2d 1011, 1021 (D.C. Cir. 1992) (quoting
Brady v. Unites States, 397 U.S. 742, 750 (1970)). Additionally, other courts have held contrary
to Defendant Magruder’s proposition. See, e.g., United States v. Felice, 272 F. App’x 393, 396
(5th Cir. 2008) (“Threats regarding additional charges or enhanced penalties are accepted
practices in plea negotiations and are not considered the kinds of threats which undermine the
voluntariness of a guilty plea.”); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (noting that
while “confronting a defendant with the risk of more severe punishment clearly may have a
4 In Defendant Magruder’s Reply to the Government’s Supplement, Defense counsel contends that she has not received all of the discovery from Defendant Magruder’s prior counsel, so she is unsure exactly what discovery material was not provided prior to Defendant Magruder’s guilty plea. Def.’s Reply to Supp., ECF No. 32. However, current Defense counsel agrees that the relevant phone records were provided to prior Defense counsel before Defendant Magruder’s guilty plea. Id. 13 discouraging effect on defendant’s assertion of his trial rights, the imposition of these difficult
choices [is] inevitable … and permissible”). Moreover, at his plea hearing, Defendant Magruder
answered “no” under oath when asked by the Court if “[a]nyone forced, threatened or coerced
[him] in any way into entering this plea of guilty.” Ex. 3, ECF No. 28-3, 40:2-4. As a result,
Defendant Magruder has failed to establish a claim of coercion.
Additionally, the Government has produced evidence showing that if Defendant
Magruder declined to accept the Rule 11(c)(1)(C) plea, the Government intended to file the 21
U.S.C. § 851 enhancement. Ex. 5, ECF No. 31-1. The Government has also provided evidence
that Defense counsel asked at least twice if the Government would agree to a plea below 140
to180 months, and the Government stated, “I can’t go lower than 12-15.” Ex. 4, 2, ECF No. 31-
1. The Government noted that even if an enhancement was not filed and Defendant Magruder
elected to plead to the indictment, Defendant Magruder’s guidelines range would be 262 to 327
months, significantly higher than what was agreed to in the Rule 11(c)(1)(C) plea. Ex. 3, ECF
No. 31-1.
And, prior to accepting the plea, Defendant Magruder had multiple opportunities to ask
questions about his plea offer. The Court explained to Defendant Magruder the effects of the
Rule 11(c)(1)(C) plea on the mandatory minimums. On October 22, 2019, prior to the plea
hearing, the Court explained, “As to the two ranges that would be associated for you to make a
decision how reasonable it is, frankly, to decide to accept or not accept the 144 to 180. If you do
the—if you turn out to be a career offender, you are at offense level 37, category VI; and that’s
262 to 327 months, with a large fine.” Tr. Oct. 22, 2019, ECF No. 20, 10:1-6. Without career
offender status, the guidelines sentence was 120 to 150 months. Id. at 10:7-10. The Court
14 explained that with the Rule 11(c)(1)(C) plea “you are agreeing to something that sort of
straddles, to some degree, these.” Id. at 10:11-12.
Additionally, during the plea hearing Defendant Magruder affirmed that he viewed the
plea materials individually and with his prior counsel. Ex. 3, ECF No. 28-3, 7:5-11. He further
indicated that he had enough time to review the plea materials and to consider fully the offer. Id.
at 8:2-7. Defendant Magruder also affirmed that he had discussed with his prior counsel the
mandatory minimum and the increased mandatory minimum if the Government filed the
enhancement. Id. at 25:1-10. Defendant Magruder indicated that he understood that his plea
sentencing guideline range straddled the 262 to 327 months he would face as a career offender
and the 120 to 150 months he would face if he was not a career offender. Id. at 28:4-14. The
Court notes that the Probation Office made a finding that Defendant Magruder would qualify as
a career offender, and Defendant Magruder did not dispute this finding in any of his hearings or
pleadings. As such, Defendant Magruder’s status as a career offender is unrebutted. Defendant
Magruder also stated that he had talked to his prior counsel about the sentencing guidelines and
how they would apply in his case. Id. at 28:15-18. Defendant Magruder indicated that he
understood that, without the Rule 11(c)(1)(C) agreement, he could be given a different sentence
which, if a variance was granted, could be below the sentencing guidelines range but not below
the mandatory minimum. Id. at 29:15-24. Defendant Magruder stated the ramifications of
accepting or not accepting the plea had been explained by his prior counsel. Id. at 30:4-8.
Defendant Magruder was repeatedly advised of his possible sentencing ranges and the
ramifications of accepting his plea. Defendant Magruder has failed to show that his decision to
accept the Rule 11(c)(1)(C) plea was not knowing or voluntary.
15 For these reasons, the Court concludes that Defendant Magruder’s plea was not tainted.
B. Viable Defense
Under the first factor, a defendant seeking to withdraw a guilty plea “must make out a
legally cognizable defense to the charge against him.” McCoy, 215 F.3d at 106 (quoting Cray, 47
F.3d at 1207) (internal quotation marks omitted). A “general denial” is insufficient; instead, the
defendant must “affirmatively advance an objectively reasonable argument that he is innocent,
for he has waived his right simply to try his luck before a jury.” McCoy, 215 F.3d at 106 (quoting
Cray, 47 F.3d at 1207) (internal quotation marks omitted). In United States v. Thomas, the court
held that while the defendant claimed to have “steadfastly proclaimed his innocence,” the
defendant’s own “admissions weakened his assertion of innocence.” 541 F. Supp. 2d at 28
(noting defendant admitted to knowingly possessing marijuana, selling marijuana to an
undercover police officer within 1,000 feet of a school, and possessing a loaded firearm).
Conversely, in United States v. McCoy, the court found that the defendant had “adequately
presented cognizable defenses to the charges against him, ” as he “consistently argued that the
police mistakenly identified him as the seller,” and “maintain[ed] that he did not know [his co-
defendant] intended to sell cocaine base.” 215 F.3d at 106-07.
Here, Defendant Magruder claims that he asserted a “legally cognizable defense to [his]
offense” because “without the evidence law enforcement seized at the time [he] had been
stopped and arrested, the government would have had no physical evidence to support their
charges.” Def.’s Reply, ECF No. 29, 3. In other words, if Defendant Magruder had the
opportunity to “review and study the full discovery,” he would have “discovered viable
arguments to present in a motion to suppress the warrant” that led to the search and seizure of the
16 drugs and his arrest. Id. at 4.
While Defendant Magruder does assert a potential defense––the filing of a Franks motion
to suppress a warrant—Defendant Magruder’s understanding of this factor is misplaced. Even
when a court views this factor under the lens of “legally cognizable defense,” as opposed to
“viable claim of innocence,” a defendant still needs to “affirmatively advance an objectively
reasonable argument that he is innocent.” United States v. Robinson, 587 F.3d 1122, 1131 (D.C.
Cir. 2009); see also Cray, 47 F.3d at 1209 (“A defendant appealing the denial of his motion to
withdraw a guilty plea . . . must do more than make a general denial in order to put the
Government to its proof; he must affirmatively advance an objectively reasonable argument that
he is innocent.”); United States v. Sibblies, 562 F. Supp. 2d 1, 6 (D.D.C. 2008) (concluding that
“deprecating the government’s evidence amounts to only a general denial of guilt or an argument
that the government could not prove its case”).
Here, it is undisputed that Defendant Magruder does not allege actual innocence. Instead,
Defendant Magruder argues that but for his prior counsel’s ineffective assistance he could have
filed a Franks motion to suppress the warrant. Without so much as a general denial of guilt, the
Court finds that this factor does not support a withdrawal of Defendant Magruder’s guilty plea.
See U.S. v. Curry, 494 F.3d 1124, 1129 (D.C. Cir. 2007) (faulting the defendant where his brief
“does not include a single sentence declaring that he is actually innocent or disclaiming his
admission of guilty at the plea proceeding”).
Even if the Court were to assume that Defendant Magruder is not required to assert actual
innocence and that a legally cognizable defense is sufficient, the Court concludes that Defendant
Magruder has also failed to assert a legally cognizable defense. As the Court previously
17 explained, in order to prevail on a Franks motion to suppress a warrant, a defendant must show
that any false statements in an affidavit were made “knowingly and intentionally, or with
reckless disregard for the truth” and were “necessary to the finding of probable cause.” Franks,
438 U.S. at 155. Here, Defendant Magruder has cited only two mistakes in the May 10, 2019
affidavit. First, that the seven outgoing calls made to Mr. Mosquera-Asprilla’s phone occurred in
March 2019, not in April 2019; and second, that the claimed 16-minute call between Defendant
Magruder and Mr. Mosquera-Asprilla on April 22, 2019, actually occurred for 13.5 minutes on
March 22, 2019. Def.’s Mot., ECF No. 27, 5. As the Court previously explained, these mistakes
are not material mistakes, and Defendant Magruder has provided no evidence that the mistakes
were made knowingly, intentionally, or recklessly. See Supra Sec. III.A. As such, Defendant
Magruder has failed to show that his potential Franks motion was likely to have resulted in a
suppression of the warrant and has failed to state a legally cognizable defense. See Barker, 514
F.2d at 220 (finding if defendant does not “effectively den[y] his culpability,” his “motion to
withdraw need not be granted”).
Accordingly, the Court finds that Defendant Magruder has failed to show that he has a
viable claim of innocence or a cognizable defense to the crime for which he pled guilty.
C. Prejudice
As a final factor, the Court considers whether or not the delay between the guilty plea and
the motion to withdraw has substantially prejudiced the Government’s ability to prosecute the
case. In this case, the Government “does not claim that it would be substantially prejudiced by
the withdrawal of the defendant’s guilty plea.” Gov.’s Opp’n, ECF No. 28, 9 n.5. Because the
Government does not argue that it would be prejudiced by Defendant Magruder’s withdrawal of
18 his guilty plea, this factor does not interfere with Defendant Magruder’s motion to withdraw.
However, this factor “has never been dispositive in our cases.” Curry, 494 F.3d at 1128
(upholding denial of withdrawal of guilty plea even though the Government did not argue
prejudice) (quoting United States v. Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003)). Accordingly,
even though the Government does not claim prejudice from the withdrawal, Defendant
Magruder’s motion to withdraw remains insufficient as he has failed to establish that his plea
was tainted or that he has a viable claim of innocence or a cognizable defense.
D. Hearing
As a final matter, the Court must decide whether an evidentiary hearing is warranted in
this case. Generally, when a defendant seeks to withdraw a guilty plea, “the district court should
hold an evidentiary hearing to determine the merits of the defendant’s claims.” Taylor, 139 F.3d
at 932. Claims, including ineffective assistance of counsel, “frequently concern matters outside
the trial record, such as whether counsel properly investigated the case, considered relevant legal
theories, or adequately prepared a defense.” Id. (internal quotation marks omitted). However,
some motions to withdraw a guilty plea “can be resolved on the basis of the trial transcripts and
pleadings alone.” Id. For example, in United States v. Tolson, faced with a motion to withdraw
based on a claim of ineffective assistance of counsel, the court determined that an evidentiary
hearing was unnecessary because the court was “faced with but one or two fairly simple
instances of attorney conduct that are alleged to be deficient.” 372 F. Supp. 2d 1, 8-9 (D.D.C.
2005), aff’d, 264 F. App’x 2 (D.C. Cir. 2008). Thus, the court was able to “easily adjudicate” the
merit of the defendant’s contentions by relying solely on the pleadings and transcripts. Id.; see
also Thomas, 541 F. Supp. 2d at 22-26 (concluding evidentiary hearing was unnecessary because
19 defendant’s claim was insufficient to render plea invalid even when defendant argued that prior
counsel failed to investigate fully); Robinson, 587 F.3d at 1127-33 (finding district court did not
err in denying evidentiary hearing as the defendants’ pleas were not tainted despite alleged
coercion by the government).
Here, the Court finds that an evidentiary hearing is unnecessary. Even if the Court credits
Defendant Magruder’s claim that his prior counsel was deficient for failing to fully analyze the
discovery, the Court has found that such deficiency did not prejudice Defendant Magruder as a
potential Franks motion would not have been successful. An evidentiary hearing would not alter
this finding. Additionally, Defendant Magruder’s description of the plea process, including his
prior counsel’s actions during that process, are not controverted and would not be further
illuminated by an evidentiary hearing.
Additionally, the Court notes that “[a] district should ordinarily conduct an evidentiary
hearing upon request.” See Thomas, 541 F. Supp. 2d at 23 (emphasis added); Sibblies, 562 F.
Supp. 2d at 3 (reciting same standard). In this case, Defendant Magruder never requested that the
Court hold an evidentiary hearing in connection with his motion to withdraw.
For these reasons, the Court concludes that it would not be benefitted by an evidentiary
hearing. See Curry, 494 F.3d at 1131 (finding that there was “no need for the court to conduct an
evidentiary hearing” where the facts were not in dispute).
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendant Magruder’s [27] Motion to
withdraw his guilty plea. Defendant Magruder has failed to show that his plea was tainted or that
20 he has a viable claim of innocence or a cognizable defense to the charge to which he pled guilty.
An appropriate Order accompanies this Memorandum Opinion.
/s COLLEEN KOLLAR-KOTELLY United States District Judge