The opinion of the court was delivered by: JOHN E. JONES, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a handwritten letter addressed to
the Court from the defendant, Gilbert Robinson ("Defendant" or
"Robinson"), who is represented by G. Scott Gardner, Esquire, and
which requests the withdrawal of his guilty plea and the
appointment of new counsel. We will instruct the Clerk to file
the Defendant's letter on the docket and we will consider it to
be a pro se Motion to Withdraw Defendant's Guilty Plea and For
Appointment of New Counsel.
On May 5, 2004, the defendant, Gilbert Robinson ("Defendant" or
"Robinson"), pled guilty to Count One of the Superceding
Indictment charging him with a violation of 21 U.S.C. § 846,
knowing and intentional possession with the intent to distribute
and distribution of controlled substances, to wit: in excess of
50 grams of cocaine base, also known as crack cocaine, and
heroin. In the letter received by the Court on May 17, 2005, Defendant
states that he is writing to inform the Court of his wish to
withdraw his "plea agreement" because at the time of his guilty
plea, he thought that he was pleading guilty to 50 grams of
cocaine powder, as opposed to the statute to which he pled
guilty, 21 U.S.C. § 846, knowing and intentional possession with
the intent to distribute and distribution of controlled
substances, to wit: in excess of 50 grams of cocaine base, also
known as crack cocaine, and heroin. Defendant appears to contend
that he did not make this realization until he received a letter
from his attorney dated May 11, 2005 which stated the count of
the Superceding Indictment to which he pled guilty. Defendant
explains that it is his position at this time "to reserve my
common law right not to be compelled to perform under any
agreement that I have not entered into knowingly, voluntarily,
intentionally. Furthermore I would like new counsel appointed to
me at this time so I can prepare for trial."
We note that Federal Rule of Criminal Procedure 11(d) addresses
withdrawing a guilty plea. Federal Rule 11(d) states, in
pertinent part, as follows:
(d) A defendant may withdraw a plea of guilty:
(2) after the court accepts the plea, but before it
imposes sentence if:
(B) the defendant can show a fair and just reason for
requesting the withdrawal.
Fed.R.Crim.P. 11(d)(2)(B). The Third Circuit Court of Appeals has
instructed that once accepted, a guilty plea may not automatically be withdrawn
at the defendant's whim. United States v. Brown, 250 F.3d 811
815 (3d Cir. 2001); United States v. Martinez, 785 F.2d 111 (3d
Cir. 1986). Instead, a defendant must have a fair and just reason
for withdrawing a plea of guilty, as we previously explained, and
the defendant has the burden of demonstrating such a reason.
See United States v. Isaac, 141 F.3d 477
, 485 (3d Cir. 1998).
Additionally, the Third Circuit has explained that three
factors are employed to evaluate a motion to withdraw: (1)
whether the defendant asserts his/her innocence; (2) whether the
government would be prejudiced by the withdrawal; and (3) the
strength of the defendant's reason to withdraw the plea. Brown,
250 F.3d at 815; see also United States v. Huff,
873 F.2d 709, 711 (3d Cir. 1989). "A shift in defense tactics, a change of
mind, or the fear of punishment are not adequate reasons to
impose on the government the expense, difficulty, and risk of
trying a defendant who has already acknowledged his guilt by
pleading guilty." Brown, 250 F.3d at 815 (quoting United
States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by
statute on other grounds as stated in, United States v.
Robinson, 194 F.3d 408, 417 (3d Cir. 1999)).
During the proceeding in which the Defendant pled guilty to
Count One of the Superseding Indictment on May 5, 2004, Mr.
Marino, on behalf of the United States provided a detailed summary of the Defendant's role in the
instant offense. The Court then asked the Defendant if he agreed
with the summary provided and he responded, "Yes, sir." The Court
then asked the Defendant to tell the Court in his own words what
he did in this case and we then attempted to clarify several of
Defendant's statements by asking, "Are you telling me that you
participated with Jones in giving Eckard certain quantities of
drugs to sell?" The Defendant responded, "Yes, sir." The
following dialogue then ensued.
The Court: And were those drugs crack cocaine?
The Court: And were those drugs cocaine powder?
The Court: And were those drugs heroin?
The Defendant: Yes, sir. Basically he had the heroin.
I didn't like heroin at the time, so he was he was
the one that was giving him the heroin. I just messed
with I was messing with the powder and the crack,
he was the one that was giving him the heroine. I
didn't mess with them.
The Court: Well, with respect to the heroin, did you
transport heroin with Mr. Jones?
The Defendant: Yeah, I was with him at the time, yes,
sir. I was with him at the time, but I don't want no
I didn't want no parts of that, and that was his
thing, that wasn't my thing. The Court: When you say you were with him as it
relates to the heroin, what do you mean?
The Defendant: I was with him, I was driving with him
when he gave it to him. I didn't have no parts to
that. I gave him what I gave him. He gave him what he
The Court: Right. Now, you've been permitted to
stipulate that involved here we had at least 35.7
grams of crack cocaine, 123 grams of cocaine powder,
and 3.9 grams of heroin. Did your sale and when I
talk about heroin, I'm talking about that quantity
that was sold by Mr. Jones when you were in his
company and when you drove him. Were the quantities
at least that much?
The Defendant: Yes, sir. (Emphasis added).
Thus, under direct and pointed questioning by the Court during
the guilty plea colloquy, the Defendant unequivocally agreed to
the type and quantity of drugs in this case. Defendant's
statement that it was his understanding that he was pleading
guilty to 50 grams of cocaine powder, which he allegedly stated
at his guilty plea colloquy, is meritless because it flies in the
face of what Defendant himself told the Court. In considering the
above-referenced three factors necessary to evaluate a motion to
withdraw a guilty plea, we conclude that the Defendant is not
asserting his innocence, but rather asserting that he pled guilty
to a different amount and type of drug; that the United States
would be prejudiced by the withdrawal of Defendant's guilty plea;
and that Defendant's reason to withdraw the plea is clearly insufficient. Therefore, Defendant has failed
to present a fair and just reason for withdrawing his plea
pursuant to Fed.R.Crim.P. 11(d)(2)(B).*fn1
This untimely attempt to back out of his plea by Defendant,
which was received approximately one week before his sentencing
date, was in our opinion triggered by our May 11, 2005 Order
overruling Defendant's objections to the Pre-Sentence Report
relating to career offender status and denying his Motion for a
Downward Departure pursuant to United States Sentencing Guideline
§ 5H1.4, which therefore left Defendant in an unfavorable
position. (See Rec. Doc. 196). As we previously explained, the
fear of punishment is not an adequate reason to impose on the
government the expense, difficulty, and risk of trying a
defendant who has already acknowledged his guilt by pleading
guilty. See Brown, 250 F.3d at 815. Moreover, there has been
no cognizable reason asserted at this late date as to why
Defendant is entitled to either withdraw his guilty plea or to be
appointed new counsel. Simply stated, the facts and circumstances
of this case indicate that having received an unfavorable ruling
from the Court on a sentencing issue, which ...