United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JTUJGE.
matters are before the Court on Defendant's letter motion
for new counsel, doc. 68; Defendant's attorney's
motion to withdraw, doc. 70; and the Defendant's motion
to withdraw his guilty plea, doc. 58. The Court considered
these motions at the August 22, 2019, sentencing hearing,
before considering any sentencing matters. Ruling from the
bench, the Court DENIED the motions listed
above. The Court hereby issues this Opinion and Order to
further articulate its ruling.
is charged in an eight-count indictment with: Conspiracy to
Distribute and Possess with Intent to Distribute Controlled
Substances in violation of 21 U.S.C. § 846 ("Count
One"); 2); Possess with Intent to Distribute Controlled
Substances in violation of 21 U.S.C § 841 ("Counts
Three, Four, and Five"); Possessing a Firearm in
Furtherance of a Drug Trafficking Crime pursuant to 18 USC
§ 924(c)(1)(A) (Count Six"), and Possession of a
Firearm by a Convicted Felon pursuant to 21 U.SC. § 922
("Counts Two, Seven, and Eight"). Doc. 1
Defendant was represented by the Federal Public Defender.
After a hearing on a motion to withdraw, the Court found that
a conflict existed and permitted the withdrawal. Doc. 16.
Then, the Court appointed Mary Morgan to represent Defendant
on December 12, 2018. Following that appointment, Defendant
filed a motion to continue, which the Court granted. Docs.
January 18, 2019, Defendant filed a motion to suppress
evidence and to produce a confidential witness. Doc. 24, 25.
Shortly thereafter, Defendant filed a motion to withdraw Ms.
Morgan as his counsel. Doc. 28. On February 6, 2019, the
Court held a hearing on the motion to withdraw Ms. Morgan and
granted the motion. Doc. 30, 31. Following that order, the
Court appointed Defendant's current counsel, James
March 14, 2019, the Court heard arguments on Defendant's
motions to suppress and produce a confidential witness. The
Court denied those motions for reason stated at the hearing
and its written opinion. Doc. 50.
April 30, 2019, the Court convened for trial. The Court
conducted voir dire to select a jury. Voir dire took most of
the morning, so the Court recessed for lunch. Shortly before
the Court re-convened, it was advised that the parties had
come to a plea agreement. The Court then conducted its plea
colloquy and, after finding that the plea was made
voluntarily and knowingly and otherwise proper, the Court
accepted the plea and dismissed the jury. Sentencing was set
for August 22, 2019. Doc. 55.
16, 2019, the Pre-Sentence Investigation Report
("PSR") was filed. Doc. 56. The PSR found that the
sentencing guidelines provided a range of 210-240 months.
Id. at 22. Shortly afterward, on July 30, 2019,
Defendant filed a motion to withdraw his plea. Defendant also
mailed this Court a letter, requesting new counsel. Doc. 68.
Mr. Theuer filed a motion to withdraw on August 15, 2019, the
day after the letter was docketed. Doc. 70.
MOTION TO WITHDRAW GUILTY PLEA
defendant has no absolute right to withdraw his guilty plea.
United States v. Bowman, 348 F.3d 408, 413-14 (4th
Cir. 2003). A defendant may not withdraw a guilty plea unless
he demonstrates a "fair and just" reason why the
withdrawal is allowed. Fed. R. Crim. P. 11(d)(2)(B). A fair
and just reason is one that essentially changes the fairness
of the Rule 11 hearing. United States v. Puckett, 61
F.3d 1092, 1099 (4th Cir. 1995) (quoting United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc)).
Whether such a reason has been given is a matter within the
discretion of the district court. Id.
guide the district court's discretion, the Fourth Circuit
has articulated six factors to evaluate when faced with a
motion to withdraw a guilty plea:
(1) whether the defendant has offered credible evidence that
his plea was not knowing or not voluntary;
(2) whether the defendant has credibly asserted his legal
(3) whether there has been a delay between the entering of
the plea and the filing of the motion;
(4) whether the defendant has had close assistance of
(5) whether withdrawal will cause prejudice to the
(6) and whether it will inconvenience the court and waste