The opinion of the court was delivered by: JOY FLOWERS CONTI, District Judge
Pending before the court is the renewed motion for withdrawal
of guilty plea filed by defendant Gary Kenneth Wilder, Jr.
("defendant" or "Wilder"). The court will deny the renewed motion
because after considering and balancing the three factors for
withdrawal of a guilty plea set forth in United States v.
Jones, 336 F.3d 245 (3d Cir. 2003) ("Jones II"), the court
finds that defendant did not show a fair and just reason for
withdrawing his guilty plea.
Defendant appeared before this court on November 4, 2003 to
change his previous plea of not guilty at counts 6 and 9 of the
indictment to a plea of guilty. At the hearing, the court placed
defendant under oath and found defendant competent to plea
without objection from his previous counsel. Transcript of
November 4, 2003 Hearing ("Tr.") at 3-5. The court further
explained defendant's constitutional and other rights, including:
defendant's right to a trial by jury; his privilege against
self-incrimination; his right to participate in jury selection;
the applicable burden of proof beyond a reasonable doubt the
government would be required to meet at trial; and his right to confront, question and cross-examine
witnesses at trial. Tr. at 6-9. The court also explained that if
defendant entered a guilty plea, he would waive all of those
rights. Id. at 9. Defendant indicated he understood the effect
of a guilty plea and stated to the court that he still wanted to
plead guilty. Id. at 9-10.
The court then explained that the United States Sentencing
Guidelines would apply to any sentence imposed at counts 6 and 9.
Id. at 11. The court informed defendant that it would be unable
to determine defendant's guideline sentence range until after a
presentence report was prepared by the United States Probation
Officer, and until after both defendant and the government had an
opportunity to respond to the facts contained in that report.
Id. After informing defendant that a presentence report was
necessary to determine his Guidelines range, the court advised
defendant of the minimum and maximum penalties with respect to
counts 6 and 9 of the indictment. Id. at 13-15. The court
stated with respect to count 6 that the minimum penalty was a
term of imprisonment of 5 years with a term of supervised release
of 4 years, and that the maximum penalty was a term of
imprisonment of 40 years, a lifetime of supervised release, and a
fine of $2,000,000. With respect to count 9, the court informed
defendant that the minimum penalty was a term of imprisonment of
not less than 5 years to be served consecutively to any other
term of imprisonment imposed for conviction on count 6 in the
indictment. The court explained that because the term of
imprisonment at count 9 ran consecutively, it would be added to
any term of imprisonment to which defendant was sentenced at
count 6. The court then stated that the maximum penalty to count
9 was a term of life imprisonment, a term of supervised release
of 3 years, and a fine of $250,000. Finally, the court, in a
summary of the total penalty defendant would be facing, stated
that the total minimum penalty as to counts 6 and 9 would be a
term of imprisonment of 10 years and a term of supervised release
of 5 years, and that the total maximum penalty as to counts 6 and 9 could be a
life term of imprisonment, a life term of supervised release, and
a fine of $2,250,000. Id.
The court also asked defendant the following question: "Mr.
Wilder, do you understand that if the sentence imposed is more
severe than you expected, you will still be bound by your plea
and will not be able to withdraw?" Id. at 12. Defendant
replied, "Yes." Id. Defendant also stated that he understood
everything the court stated to him, including the minimum and
maximum penalties for his offenses. Id. at 13-16. Defendant
further testified no one had threatened or coerced him in any way
to plead guilty, and that, with respect to the terms of his
written plea agreement with the government, no promises had been
made to induce him to plead guilty. Id. at 18, 24-25. The court
entered into the following exchange with defendant regarding
whether he had received any promises or predictions with respect
to the actual sentence he would receive:
THE COURT: Mr. Wilder, has anyone made any promise
other than the promises made in the plea agreement
that has induced you to plead guilty?
MR. WILDER: No.
THE COURT: Has anyone made any prediction or promise
to you as to what your aactual [sic] sentence will be
other than what you've been told as a minimum and
MR. WILDER: No.
THE COURT: Has anything I said today other than what
I told you about the minimum and maximum sentence
suggested to you what your actual sentence will be?
MR. WILDER: No.
THE COURT: Have you been instructed by the government
attorney, your attorney or anyone else to respond
untruthfully to any question concerning a promised
sentence? MR. WILDER: No.
Id. at 24-25.
Immediately after the above exchange, the court asked and
defendant responded to the following two questions:
THE COURT: Mr. Wilder, did you conspire to distribute
and possess with the intent to distribute 100 grams
or more of heroin in violation of Title 21, United
States Code Section 846, as set forth in Count 6 of
the indictment filed at Criminal No. 03-72, which I
have summarized for you a few minutes ago?
MR. WILDER: Yes.
THE COURT: Mr. Wilder, did you carry a firearm during
and in relation to drug trafficking crime and/or
possess a firearm in furtherance of a drug
trafficking crime in violation of Title 18, United
States Code, Section 924(c)(1)(A)(I), as set forth in
Count 6 of the indictment filed at Criminal No.
MR. WILDER: Yes.
Id. at 25.
The government then summarized the government's evidence as to
counts 6 and 9, stating that the charges against Wilder were a
result of a multi-agency investigation of the Michael Good drug
trafficking organization. Id. at 27. The government explained
that it was able to procure a court authorized wiretap on a total
of five cellular phones: two of the phones belonged to Michael
Good, and three other cell phones belonged to other alleged
co-conspirators indicted in Criminal Action No. 03-72. Id. at
27-28. The Drug Enforcement Administration and the Pittsburgh
Police Department were able to monitor calls made on these
cellular phones, as well as use surveillance and other
investigative techniques, in order to confirm that Michael Good's
organization was distributing large quantities of crack cocaine
and heroin on Pittsburgh's North Side. Id. at 28. The government noted that it intercepted
numerous cellular phone calls between Wilder and Michael Good
which revealed that Wilder was obtaining heroin from Michael Good
that Wilder distributed to others. Id. at 28-29. On January 3,
2003 agents from the Drug Enforcement Administration intercepted
several telephone calls indicating that a deal was going to take
place between Michael Good and Wilder. Id. at 29. The agents
confirmed that a deal took place on January 3, 2003 between
Michael Good and Wilder at the Red Roof Inn in Robinson Township,
After Wilder took possession of the drugs, Pittsburgh Police
officers on the same day proceeded to conduct a traffic stop of
the vehicle in which Wilder was traveling. Id. The vehicle was
searched pursuant to that stop and police uncovered a bag
containing 125 bricks of heroin, totaling 750 stamp bags of
heroin. Id. The bag also contained a 9 millimeter
semi-automatic handgun. Id. Subsequent recorded telephone calls
between Wilder, Michael Good and other alleged co-conspirators
intercepted by the multi-agency task force revealed that the
co-conspirators were concerned that they were facing federal drug
and gun charges. Id.
On February 18, 2003, a federal grand jury charged Michael
Good, Wilder and 11 other alleged co-conspirators as being part
of the drug trafficking organization. Id. Wilder was arrested
on February 22, 2003. Id. Following his arrest Wilder was
advised of his Miranda rights and he agreed to make statements.
Id. Wilder admitted to federal agents that Michael Good was one
of his heroin sources of supply and explained that on January 3,
2003, Michael Good had fronted him fifteen bricks of heroin and
the 9 millimeter semi-automatic handgun. Id. That gun and the
fifteen bricks of heroin were among the items seized from
Wilder's vehicle during the January 3, 2003 traffic stop. Id.
Wilder also told the agents that he owed Michael Good $4,500 for
the gun and the drugs, and further admitted that he obtained
numerous bricks of heroin on several occasions from Michael Good, including on one
occasion three weeks prior to his arrest. Id.
After the attorney for the government summarized Wilder's
involvement in the offenses, the court asked defendant whether he
agreed with the prosecution's summary of what he did. Wilder
indicated to the court that he agreed with the government's
summary of his conduct and stated that he still wanted to plead
guilty. Id. at 31. The court then entered a judgment of guilty
on the record, based upon the government's factual proffer and
defendant's concurrence in that proffer. The court stated:
THE COURT: Mr. Wilder, since you acknowledge that you
are, in fact, guilty as charged in Counts 6 and 9,
since you know your right to a trial, since you know
what the minimum possible penalty is, since you know
what the maximum possible penalty is, since you are
voluntarily pleading guilty, the court accepts your
guilty plea and hereby enters a judgement [sic] of
guilty on your plea.
Id. at 31.
Wilder was scheduled to be sentenced by the court on January
23, 2004. One week prior to that date, Wilder filed a motion to
withdraw his guilty plea. In that motion, defendant's previous
counsel indicated that he incorrectly determined defendant's
qualifications for career offender status under the Guidelines
and that defendant was now facing four times the exposure that
the attorney had predicted. Attached to defendant's motion were
two signed verifications from defendant and defendant's previous
counsel, attorney Paul Gettleman, asserting that the actions of
defendant's previous counsel constituted ineffective assistance
of counsel and precluded defendant's plea from being knowingly
and intelligently made. The verifications further indicated that
Wilder would not have made the guilty plea had he known he would
be classified as a career criminal under the United States
Sentencing Guidelines. The court held a status conference on January 30, 2004 to
discuss the motion to withdraw defendant's guilty plea. Following
that status conference, attorney Gettleman filed a motion to
withdraw as counsel, citing a conflict of interest in that he
would most likely be required to testify at a hearing with
respect to his alleged ineffective assistance of counsel. The
court granted that motion, and on February 18, 2004, appointed
new counsel for defendant. After a status conference on March 15,
2004, the court directed the government to file its opposition to
defendant's motion and directed defendant's current counsel to
file a response. The parties filed the respective documents with
the court, and the court scheduled an evidentiary hearing for May
At the evidentiary hearing, both defendant and his former
counsel testified. Attorney Gettleman testified that he reviewed
defendant's "rap sheep" of former convictions in conjunction with
the Sentencing Guidelines. Transcript of May 27, 2004 Hearing
("5/27/04 Tr.") at 9-10. He stated that among defendant's
previous convictions was a prior felony conviction. Id.
Attorney Gettleman testified that he believed, according to the
plain language of the statute and the Sentencing Guidelines, that
a state simple assault misdemeanor would not count toward
defendant's career criminal offender status. Id. at 10. He told
the court that he reviewed defendant's case with him including
defendant's criminal history and its effect on defendant's
probable Sentencing Guideline range of imprisonment at the
Allegheny County Jail several days prior to the change of plea
hearing. Id. Specifically, he testified that he counseled
defendant that defendant had an offense level in the low 20's and
that it was his belief that defendant's sentence would be under
10 years. Id. at 9-10, 14. He also explained to defendant that
the sentence on the gun charge would be five years consecutive to
the drug charge. Id. at 16. The court questioned attorney Gettleman about United States v.
Dorsey, 174 F.3d 334 (3d Cir. 1999), a decision in which the
United States Court of Appeals for the Third Circuit concluded
that the Pennsylvania offense of simple assault was a "crime of
violence" and could be considered for purposes of determining
career offender status. 5/27/04 Tr. at 19. Attorney Gettleman
stated that he "had no idea about [Dorsey]" prior to the
presentence report. Id. He testified that he had been
practicing as a criminal attorney for over thirty years, and that
less than five percent of his practice was devoted to federal
criminal work. Id. at 10. He stated that he followed what he
believed was the plain meaning of the statute in advising his
client. Id. He concluded his testimony by acknowledging that he
"failed" defendant by giving him wrong advice, and that was why
he filed the motion for defendant to withdraw his guilty plea.
Id. at 20.
The only other witness appearing on behalf of defendant was
Wilder himself. Defendant testified that attorney Gettleman
advised him to plead guilty, telling him that the plea "would be
good because it was under ten years. . . ." Id. at 25. After
Wilder expressed skepticism, his attorney "kind of straight up
said you're not going to win." Id. Defendant's attorney also
told Wilder that the "career criminal didn't pertain to
[defendant]." Id. Defendant stated that attorney Gettleman did
not review how the Guidelines would apply to defendant. Id.
Defendant further testified that he decided to plead guilty
because he feared that he would potentially be exposed to a much
longer term of imprisonment if he was adjudged guilty at trial,
as opposed to the sentence he would receive for entering a guilty
plea. Id. at 25-26. With respect to count 6, defendant stated
that he was innocent of the crime charged, yet he presented no
evidence with respect to his involvement, or lack thereof, in ...