                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

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                              )
IN RE: SEALED CASE            ) Criminal Action No. 00-117 (RWR)
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                   MEMORANDUM OPINION AND ORDER

     The defendant has moved to withdraw his guilty plea to one

count of possessing a firearm in furtherance of a drug

trafficking offense in violation of 18 U.S.C. § 924(c).    He

alleges legal innocence, asserting that he felt pressured to

accept the government’s version of the facts supporting his plea

and that the facts to which he pled do not support a 924(c)

count.   Because the defendant’s plea was entered knowingly,

intelligently, and voluntarily in accordance with the procedural

safeguards afforded to him by Federal Rule of Criminal Procedure

11, and because there was an adequate factual basis to support

the 924(c) count, the defendant’s motion to withdraw his guilty

plea will be denied.

                            BACKGROUND

     The defendant was charged in a two-count information with

possession with intent to distribute (“PWID”) cocaine base in

violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and

possession of a firearm in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924(c)(1).    On April 7, 2000,

he chose to waive his right to be indicted by a grand jury and
                                -2-

pled guilty to both counts.   The factual proffer agreed to by the

defendant sets forth the following facts.

     FBI agents executed a search warrant at the defendant’s

apartment located in Washington, DC.   (Plea Hr’g Tr. 39:19-20,

Apr. 7, 2001.)   In the master bedroom of the apartment, agents

found the following items: (1) a colt .38 calibre revolver, which

was loaded with six rounds of .38 calibre ammunition; (2) a

cellular telephone and a walkie-talkie; (3) a birth certificate

and mail bearing the defendant’s name; (4) $1,530 in U.S.

currency from three separate locations; (5) six small bags of

marijuana; and (5) a small plastic bag containing cocaine base.

(Plea Tr. 39:23-40:24.)   The defendant voluntarily accompanied

the agents to the Washington field office where he waived his

rights and agreed to make a statement.   (Plea Tr. 41:3-11.)   The

defendant admitted he had purchased a half-ounce of crack cocaine

for $500 and had sold most of it the previous day while the

unsold remainder was what the agents found.   (Plea Tr. 41:22-

42:1.)   He also stated that he purchased the revolver found in

his bedroom for fifty dollars “from an individual he identified

only as a crackhead.”   (Plea Tr. 42:2-5.)   Finally, the defendant

signed a written statement that said “[o]n this day, the FBI

entered my home with a search warrant and found a .38 special,
                                -3-

sixty dime-bags of weed,1 and sixty dimes of crack. . . .     I

. . . take the blame for this charge.     It was mine.”   (Plea Tr.

42:6-21.)

     On January 31, 2008, the defendant filed a motion to

withdraw his guilty plea to the 924(c) count, claiming that he

maintained his innocence until he succumbed to undue pressure

from the government to accept the government’s characterization

of his reason for possessing the firearm found in his bedroom,

and that there was no factual basis to support the 924(c) charge.

The government opposed the defendant’s motion, arguing that the

defendant’s plea was entered knowingly and voluntarily in

accordance with Rule 11 and that the government presented

sufficient facts, with or without the defendant’s admission of

his reason for possessing the firearm at his plea hearing, to

support the 924(c) charge.

                             DISCUSSION

     Rule 11(d)(2)(B) permits a defendant to withdraw his guilty

plea before a sentence is imposed if he shows a “fair and just

reason for requesting the withdrawal.”     Fed. R. Crim. P.

11(d)(2)(B); United States v. Jones, 472 F.3d 905, 907 (D.C. Cir.

2007).   “Although presentence withdrawal motions should be

‘liberally granted,’ they are ‘not granted as a matter of


     1
     At the plea hearing, the defendant disputed that he wrote
sixty bags of marijuana in his statement, and instead recalled
having nine bags. (Plea Tr. 44:8-45:9.)
                                  -4-

right.’”   United States v. Ahn, 231 F.3d 26, 30 (D.C. Cir. 2000)

(quoting United States v. Ford, 993 F.2d 249, 251 (D.C. Cir.

1993); United States v. Loughery, 908 F.2d 1014, 1017 (D.C. Cir.

1990)); see also United States v. Shah, 453 F.3d 520, 521 (D.C.

Cir. 2006); United States v. Basu, 531 F. Supp. 2d 48, 51-52

(D.D.C. 2008).   The decision to grant or not grant withdrawal is

within the court’s discretion.    See United States v. Tolson, 372

F. Supp. 2d 1, 8 (D.D.C. 2005), aff’d, 264 F. App’x 2, 3 (D.C.

Cir. 2008).

     Typically, courts look at several factors in deciding

whether to grant a motion to withdraw a plea, including (1)

whether the guilty plea was somehow tainted, (2) whether the

defendant has asserted a viable claim of innocence,2 and (3)

whether the delay between the guilty plea and the motion to

withdraw has substantially prejudiced the government's ability to

prosecute the case.   See United States v. West, 392 F.3d 450, 455

(D.C. Cir. 2004); United States v. Asaifi, Criminal Action No.

04-401-02 (RMC), 2007 WL 1322098, at *5 (D.D.C. May 3, 2007).

When a plea is tainted because it was entered unconstitutionally

or contrary to Rule 11 procedures, the standard for granting a

motion to withdraw is lenient.    See United States v. Barker, 514

F.2d 208, 221 (D.C. Cir. 1975).    However, “where the plea itself


     2
      The D.C. Circuit has also expressed this assertion as “a
legally cognizable defense.” United States v. Curry, 494 F.3d
1124, 1129 (D.C. Cir. 2007).
                                   -5-

was properly entered[,] . . . more substantial reasons for delay

[between the entry of the plea and the filing of the motion] must

generally be asserted.”     Id.   Accordingly, it is important to

assess first the validity of the plea itself.

I.   VALIDITY OF THE PLEA

     “A plea of guilty is constitutionally valid if and 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)).      Rule 11 sets forth

procedural safeguards to ensure that a guilty plea is entered

into knowingly, voluntarily, and intelligently.3     See Fed. R.

Crim. P. 11(b).   “An understanding of the crime to which a

defendant is admitting guilt is a ‘core consideration’ of Rule


     3
     Under the version of Rule 11 in effect at the time of the
defendant’s guilty plea, in considering and accepting a guilty
plea, a court had to inform a defendant of a list of factors,
including the nature of each charge to which the defendant is
pleading; any mandatory minimum or maximum penalties under the
relevant statute; that the court was required to consider any
applicable sentencing guidelines, but could depart from those
guidelines under some circumstances; the right to be represented
by counsel at trial and at every other stage of the proceeding;
the right to plead not guilty; the right to a jury trial; the
right to confront and cross-examine adverse witnesses; the right
against compelled self-incrimination; the defendant’s waiver of
his right to trial if the court accepts his guilty plea; and that
a defendant’s answers to questioning given under oath could be
used against him in a prosecution for perjury or false statement.
See Fed. R. Crim. P. 11(c)(1)-(5) (2000). A court also had to
determine that a plea was voluntary and did not result from
force, threats, or promises, and that there was a factual basis
for the plea. See Fed. R. Crim. P. 11(d), (f) (2000).
                                 -6-

11.”    United States v. Shah, 263 F. Supp. 2d 10, 21 (D.D.C. 2003)

(quoting Ford, 993 F.2d at 253), aff’d but remanded on other

grounds, 453 F.3d 520 (D.C. Cir. 2006).    “[T]he record of the

plea colloquy must lead a reasonable person to believe that the

defendant understood the nature of the charge, such as through a

judicial recitation of the material details of the charge.”    Id.

A defendant who does not “‘show some error under Rule 11 has to

shoulder an extremely heavy burden if he is to ultimately

prevail’ in his effort to withdraw his plea.”    United States v.

Berkeley, 515 F. Supp. 2d 159, 161 (D.D.C. 2007) (quoting United

States v. Cray, 47 F.3d 1203, 1208 (D.C. Cir. 1995)).    The

defendant’s representations at the plea hearing regarding

“adequacy of counsel and the knowing and voluntary nature of his

plea . . . may ‘constitute a formidable barrier’ to . . . later

refutations.”    United States v. Taylor, 139 F.3d 924, 933 (D.C.

Cir. 1998) (citation omitted) (quoting Blackledge v. Allison, 431

U.S. 63, 74 (1977)).

       The defendant does not and cannot argue that the plea

colloquy itself was unconstitutional, as the defendant’s guilty

plea was “attended by all the required procedural safeguards [of

Rule 11].”    Cray, 47 F.3d at 1208.   The plea hearing engaged the

defendant in a thorough Rule 11 inquiry which elicited his

understanding of, and agreement to, the fact that by pleading

guilty he was “waiving his right to trial and his Fifth Amendment
                                -7-

privilege against self-incrimination.”    Shah, 453 F.3d at 522.

The defendant confirmed that he had fully discussed the charges

with his attorney, and that he understood the crimes to which he

was admitting guilt.   (Plea Tr. 7:12-23.)   Each material element

of the charges to which he was pleading was described to him and

he was told that if he went to trial, the government would have

to prove every element beyond a reasonable doubt before he could

be found guilty.   (Plea Tr. 35:20-38:18.)

     The defendant argues that his plea is tainted because he was

unfairly pressured to admit to the government’s belated

characterization of his purpose in possessing the firearm found

in his apartment to support the 924(c) count, and absent his

coerced admission, the government lacked a factual basis to

support the 924(c) charge.   The defendant contends that he had

never admitted to possessing the firearm found in his bedroom in

furtherance of his intent to sell drugs until the government

inappropriately offered its characterization of his purpose after

its proffer to the court concluded and the defendant felt he had

no choice but to admit to the government’s characterization at

that time.

     During the Rule 11 inquiry, the government offered the

detailed factual proffer to support the two charges against the

defendant.   (See Plea Tr. 39:13-44:2.)   Under oath, the defendant

agreed with all the facts proffered save the exact quantity of
                                  -8-

marijuana recovered.   (Plea Tr. 44:11.)   The court then asked the

defendant whether he agreed with the government’s factual basis

for each essential element of the 924(c) count.    When the

defendant disagreed with the court’s restatement of his purpose

for having the gun found in his apartment, the defendant’s

counsel clarified it: “if someone had attempted to enter the

premises and by force take the drugs, then he would have had

access to protect the drugs, . . . to maintain the security of

them[.]”   The court then asked the defendant, “[i]s that correct

that you had that gun there to help protect your stash?”      The

defendant answered, “Yes, sir.”    (Plea Tr. 47:5-14.)   But when

the defendant began to mention his other purpose of protecting

his home and his family, the government stated “[i]f [the

defendant] possessed the firearm . . . in his room to protect all

of his assets in his room, one of them being the crack cocaine

. . . [and] if the gun is there to protect himself from a home-

invasion type of robbery, that . . . provides a factual basis[.]”

(Plea Tr. 48:20-49:14.)

     The defendant presents no legal support for the notion that

the government could not clarify its theory of liability in this

manner during the course of the Rule 11 inquiry.    Rather, such

clarification during the course of Rule 11 inquiry was

appropriate to ensure that the both the court and the defendant
                                -9-

fully understood the nature of the government’s evidence and to

what unlawful acts the defendant was pleading.

     Further, the defendant’s thoughtful participation throughout

the Rule 11 inquiry revealed a lack of any undue pressure that

could have caused the defendant to agree to things he did not

understand or believe to be true.     Repeatedly, the defendant

informed the court when he did not understand something and

sought clarification before he provided an answer to the court’s

questions.   (See, e.g., Plea Tr. 13:22-14:12; 16:19-18:24.)

Immediately after the government’s factual proffer, the defendant

expressed his disagreement with the government’s statement of how

much marijuana he had in his possession when the government

executed a search warrant of his apartment.     (Plea Tr. 44:8-

45:6.)   In addition, rather than simply agreeing with the court’s

restatement of the relevant facts, the defendant repeatedly

rejected the court’s restatements of the parts of the

government’s factual proffer that he did not feel truthfully

reflected his actions.   (See Plea Tr. 46:21-48:19.)    Further, the

defendant was asked if there was anything else he wanted to ask

the court or his lawyer before deciding how he wanted to plead.

The defendant took the opportunity to consult with his lawyer and

inform the court that he wanted to correct the record to reflect

that he had never been formally arrested.     (Plea Tr. 53:5-54:15.)
                                -10-

The defendant’s active participation throughout the Rule 11

inquiry negates any assertion of undue pressure.

     To the extent the defendant argues that his guilty plea was

tainted because there was an insufficient factual basis to

support his plea to the 924(c) count, the government’s physical

evidence, even without the defendant’s admission, was sufficient

to support his plea.   Under 18 U.S.C. § 924(c),

     any person who, during and in relation to any crime of
     violence or drug trafficking crime . . . for which the
     person may be prosecuted in a court of the United
     States, uses or carries a firearm, or who, in
     furtherance of any such crime, possesses a firearm,
     [commits an offense].

18 U.S.C. § 924(c) (emphasis added).    The government alleged

that, had the defendant’s case proceeded to trial, it would have

proven that, although the defendant did not use or carry the

firearm during his drug-selling activity, he nonetheless

possessed the firearm found in his apartment in furtherance of

his PWID crime.   (Plea Tr. 37:8-23.)   “The ‘in furtherance of’

language of § 924(c) means that ‘the weapon must promote or

facilitate the crime.’”    United States v. Gaston, 357 F.3d 77, 83

(D.C. Cir. 2004) (quoting United States v. Wahl, 290 F.3d 370,

376 (D.C. Cir. 2002)).    In considering what is “sufficient

evidence to support a finding that [a defendant’s] possession of

a firearm was ‘in furtherance of’ a drug trafficking crime,” the

court of appeals has identified several nonexclusive factors

“helpful to a court distinguishing between ‘possession in
                                -11-

furtherance of a crime’ and ‘innocent possession.’”   Wahl, 290

F.3d at 376 (quoting United States v. Mackey, 265 F.3d 457, 462

(6th Cir. 2001)).   Relevant factors include “‘whether the gun was

loaded, the type of weapon, the legality of its possession, the

type of drug activity conducted, and the time and circumstances

under which the firearm was found.’”   Id. (quoting Mackey, 265

F.3d at 462.)   In both Gaston and Wahl, the court of appeals

upheld 924(c) convictions because “the pistols were

‘strategically located so that [they were] quickly and easily

available for use’ in furtherance of the drug crimes.”   Gaston,

357 F.3d at 83 (quoting Wahl, 290 F.3d at 376) (alteration in

original); Wahl, 290 F.3d at 376.

     In this case, the government’s factual proffer demonstrated

that the government would prove that the defendant kept an

illegally-obtained loaded gun in the same bedroom with drugs he

intended to sell and with a large amount of money.    A jury could

reasonably conclude from such evidence that the defendant kept

the loaded gun near the drugs and the money because he possessed

the gun to protect the drugs.   Under Wahl and Gaston, such an

inference is sufficient to support a 924(c) charge.   Thus, the

government presented a factual basis for the plea even without

the defendant admitting his purpose for possessing the gun.     The

defendant’s admission under oath to the government’s stated

theory for the defendant’s reason for having his gun -- that the
                                  -12-

defendant’s possession of the firearm located in his bedroom was

to protect his home and the people and things inside his home,

including the drugs (see Plea Tr. 48:20-49:14) -- bolstered the

government’s evidence because the admission established that the

defendant’s possession of the firearm was in furtherance of his

drug selling activity, rather than being innocent possession.

Although the defendant’s admission was not necessary to find a

factual basis for the plea, since the admission was made

voluntarily, it is further evidence that his plea had an adequate

factual basis when entered.   Accordingly, because the defendant’s

plea was not induced by undue pressure and there was a factual

basis for his plea, there is nothing in the record indicating the

defendant’s guilty plea was tainted.

II.   VIABLE CLAIM OF INNOCENCE

      A defendant seeking to withdraw a guilty plea before

sentencing “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.”     Asaifi, 2007 WL 1322098, at *5

(quoting Cray, 47 F.3d at 1209).     A general denial of guilt is

insufficient.   West, 392 F.3d at 456.    If withdrawal were

automatic in every case where the defendant merely asserts legal

innocence and wishes

      to alter his tactics and present his theory of the case
      to the jury, the guilty plea would become a mere
      gesture, a temporary and meaningless formality
      reversible at the defendant’s whim. In fact, however,
                                -13-

     a guilty plea is no such trifle, but “a grave and
     solemn act” which is “accepted only with care and
     discernment.”

Barker, 514 F.2d at 221 (quoting Brady v. United States, 397 U.S.

742, 748 (1970)).   Consideration “not only whether the defendant

has asserted his innocence, but also the reason why the defenses

now presented were not put forward at the time of [the] original

pleading” is important.   Id.

     The defendant asserts that because he was coerced into

accepting the government’s characterization of his purpose for

having the gun found in his bedroom, he has a viable claim of

innocence to the 924(c) charge.   However, as is discussed above,

the defendant’s admissions as to his purpose for possessing the

gun found in his apartment were made knowingly and voluntarily

and the defendant’s admitted reason sufficiently constitutes

possession of a firearm in furtherance of a drug trafficking

crime under § 924(c).   The assertion he now makes implies that he

committed perjury during his plea, and “lying to a court is not a

‘fair and just’ reason . . . for allowing a plea to be

withdrawn.”   Shah, 453 F.3d at 523 (citation omitted); see also

Barker, 514 F.2d at 223 (explaining that it is important to

consider whether a withdrawal motion “is premised on claims

directly contrary to the representations” made during the plea

hearing, and affirming denial of the motion to withdraw because

appellants willfully abused and misled the court).   Further, the
                               -14-

defendant readily agreed to, and still does not contest, the

government’s factual proffer revealing the items found all in his

bedroom, including his illegally-possessed loaded gun, a

remaining inventory of drugs for sale, and a large quantity of

cash found the day after he had sold much of a half-ounce of

crack cocaine, and such evidence would be sufficient to support a

924(c) charge even without the defendant’s admission of his

reason for having the gun.   Accordingly, in light of the

defendant’s voluntary admissions, the government’s physical

evidence, and the defendant’s failure to present any defense to

the government’s physical evidence, the defendant has not

asserted a viable claim of innocence as to the 924(c) charge.

III. PREJUDICE TO THE GOVERNMENT

     Prejudice to the government may be taken into account when

considering whether to allow a defendant to withdraw a guilty

plea, but it is not dispositive.   See West, 392 F.3d at 457.

Where a defendant has failed to establish that his plea was

somehow tainted and has failed to present a viable claim of

innocence, a defendant’s motion to withdraw his plea may be

properly denied without a showing of prejudice to the government.

See Id.
                               -15-

     The defendant waited almost six years after entering his

guilty plea to seek withdrawal.4   The government speculates,

without support, that it will suffer prejudice because the delay

in bringing the defendant to trial would weigh against the

government in the mind of a juror, and asserts that absent the

defendant’s plea, it might have sought to indict his girlfriend

within the time permitted by the statute of limitations, which

has now run.   Withdrawal of the plea now could theoretically

“substantially prejudice legitimate prosecution interests.”     See

Barker, 514 F.2d at 223 (finding prejudice to the government if

withdrawal was allowed eight months after the plea had been

entered).   Although not dispositive, this potential prejudice

also weighs against granting the defendant’s motion.

                       CONCLUSION AND ORDER

     The defendant’s plea colloquy satisfied Rule 11 and he has

not shown that he maintains a viable claim of innocence or that

his plea was anything but voluntary.   In light of these

considerations, combined with the potential prejudice to the

government if it were to try this case at this late date, the

defendant has failed to show a fair and just reason to let him




     4
     Although the defendant did not file his motion to withdraw
until January 31, 2008, almost eight years after his plea, he
expressed his intent to consider withdrawal in 2006. His motion
was delayed by difficulty in obtaining the transcript of the plea
hearing.
                               -16-

withdraw his plea.   Thus, his motion to withdraw his guilty plea

will be denied.   Accordingly, it is hereby

     ORDERED that defendant’s motion to withdraw his guilty be,

and hereby is, DENIED.

     SIGNED this 13th day of March, 2009.


                                      ________/s/_________________
                                      RICHARD W. ROBERTS
                                      United States District Judge
