The opinion of the court was delivered by: Judge Muir
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Defendant Michael Allen Morgret awaits sentencing after pleading guilty to counts one and six of the second superseding indictment filed on November 14, 2002. Count 1 charged Morgret with 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 in excess of 5 kilograms of cocaine powder, Schedule II controlled substances, and hydrocodone, a Schedule III controlled substance [in violation of 21 U.S.C. § 846]. (Second Superseding Indictment, p. 7) Count 6 charged Morgret with conspiracy to intimidate witnesses, to possess and distribute firearms illegally, and to commit arson and mail fraud.*fn1
On December 28, 2006, Defendant Michael Allen Morgret filed a document entitled "Defendant's Third Motion To Withdraw Guilty Plea." The title of that document is misleading because it is in fact the fourth such motion which Morgret has filed in this case.*fn2 A brief supporting the motion was filed on January 15, 2007. The government filed its opposition brief on February 6, 2007. Morgret's reply brief was due to have been filed by February 20, 2007, and to this date no such brief has been filed. Morgret's motion to withdraw his guilty plea is ripe for disposition.
The legal standard governing a motion to withdraw a guilty plea was set forth in detail in our order of September 5, 2006, in which we denied Morgret's third motion to withdraw his guilty plea. We will apply all of the principles discussed in that order to Morgret's current motion. As stated in the September 5, 2006, order, Morgret bears the burden of demonstrating a fair and just reason to withdraw his guilty plea. See Fed.R.Crim.P. 11(d); United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2004)(citing United States v. Hyde, 520 U.S. 670, 676-77, 117 S.Ct. 1630 (1997); United States v. Isaac, 141 F.3d 477, 485 (3d Cir.1998)).
The Court of Appeals for the Third Circuit has consistently held that [a] district court must consider three factors when evaluating a motion to withdraw a guilty plea: (1) whether the defendant asserts his innocence; (2) the strength of the defendant's reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal.
United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2004)(citing United States v. Brown, 250 F.3d, 811, 815 (3d Cir. 2001); United States v. Huff, 873 F.2d 709, 711 (3d Cir.1989)).
All of Morgret's asserted reasons for withdrawing his guilty plea relate to count one of the second superseding indictment. He contends that he is entitled to withdraw his guilty plea to that count because it is not couched as a generalized conspiracy to possess/conspiracy to distribute count. Count One of the Second Superceding Indictment contains a specific weight: "... in excess of 50 grams of cocaine base[, ...,] and in excess of 5 kilograms of cocaine powder."
The record at the Change of Plea Hearing clearly indicates that the amounts to which Mr. Morgret allocuted, to wit: 11 grams of cocaine base and 422 grams of cocaine powder, were far less than the amount specifically charged in the Count of conviction, "in excess of 50 grams of cocaine base[, ...,] and in excess of 5 kilograms of cocaine powder."
These facts as admitted by Mr. Morgret are insufficient to support the Count of Conviction, and, pursuant to F.R.Cr.P. 11(f) the Guilty Plea should not have been accepted by the Court.
Mr. Morgret now seeks to withdraw his guilty plea of August 25, 2003, because it was accepted in error by the Court, as the facts admitted by the defendant did not fit or support the specific facts alleged in the Count of Conviction.
(Brief in Support of Defendant's Third Motion to Withdraw Guilty Plea, p. 7) Although Morgret cites Rule 11(f), it appears as though he is actually relying upon Rule 11(b)(3), entitled "Determining the Factual Basis for a Plea," which had been Rule 11(f) prior to a recent amendment to Rule 11.
The basis underlying Morgret's argument is that a court may accept a plea of guilty to a drug conspiracy charge only if the defendant admits to the drug quantity charged in the count at issue. Morgret cites no authority to support that assertion.
Our research did not uncover any controlling precedent issued by the United States Supreme Court or the Court of Appeals for the Third Circuit. Persuasive authority in the form of precedential opinions issued by other United ...