The opinion of the court was delivered by: Judge Muir
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On December 8, 2006, Defendant Eric Lozano pled guilty pursuant to a plea agreement to one count of conspiracy to possess with the intent to distribute, and knowingly and intentionally to distribute 50 grams and more of a mixture or substance containing cocaine base, or "crack cocaine" in violation of 21 U.S.C. § 846. There are 9 defendants named in that count and identified by the government as co-conspirators, including Eric Lozano's brother, Edwin Lozano. Eric Lozano will hereafter be referred to in this order as Lozano. Edwin Lozano and 2 other co-defendants have not been apprehended and remain fugitives.
Lozano was initially represented by Attorney Jarrett R. Smith, who had been privately retained by Lozano. By order dated March 21, 2007, we granted Lozano's pro se motion to appoint new counsel. As a result of that order, Attorney William I. Arbuckle, III, was appointed on March 23, 2007, to represent Lozano.
On June 28, 2007, Lozano filed a "Motion to Withdraw Guilty Plea." The relief sought in that motion is 1) withdrawal of his guilty plea, or 2) an extension of time to file objections to his presentence report. After being granted an extension of time in which to do so, on August 3, 2007, Lozano filed a brief in support of his motion. The government filed its opposition brief on August 28, 2007. Lozano filed a reply brief on September 5, 2007, thereby ripening for disposition the motion to withdraw his guilty plea.
Lozano's current counsel states the following in the motion to withdraw Lozano's guilty plea:
Based upon Counsel's review of Attorney Smith's file, discussions with AUSA Terz and Probation Officer Noll, and a number of conferences with the Defendant, Eric Lozano, Counsel has concluded that the Defendant's plea was not knowingly or voluntarily made .... (Motion to Withdraw Guilty Plea, p. 4) Some of the circumstances cited by Lozano's counsel in support of that conclusion are the following: 1) Lozano "has an 11th grade education, mostly in special education classes"; 2) Lozano has had no prior dealings with the federal criminal justice system; 3) Lozano "was advised by Attorney Smith that he was facing a maximum ten year sentence"; 4) Lozano "was only willing to admit to drug transactions with certain individuals, not a part of the conspiracy alleged in the indictment"; 5) Attorney Smith should have declined to represent Eric Lozano because he had previously represented Edwin Lozano in connection with a previous drug offense; and 6) Attorney Smith did not advise Lozano "about the concept of relevant conduct and how it could be used in sentencing despite his proffer, stipulated facts and understanding of the plea he was entering." (Motion to withdraw Guilty Plea, pp. 6-7)
Federal Rule of Criminal Procedure 11(d) is entitled "Withdrawing a Guilty or Nolo Contendere Plea," and it provides in relevant part as follows:
A defendant may withdraw a plea of guilty or nolo contendere ... after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal. (Fed.R.Crim.P. 11(d)(2)(B)) 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)).
The first element requires us to consider Lozano's innocence. Lozano asserts his innocence to this extent: his culpability in the offense charged involves a conspiracy to distribute crack cocaine and the only co-conspirator was Jemel Woodruff. Lozano claims to be absolutely innocent with respect to the illegal activities performed by any of the other co-defendants named in the indictment and not to be a co-conspirator with any of the other co-defendants named in the indictment.
In considering the second element, "the strength of the defendant's reasons for withdrawing the plea," we pause to note some especially relevant legal principles. Courts have stated that
[f]actors to consider when applying this standard of a fair and just reason [for withdrawal of a guilty plea] are whether: (1) the defendant has asserted his innocence; (2) withdrawal will prejudice the government; (3) the defendant delayed in filing his withdrawal motion; (4) withdrawal would substantially inconvenience the court; (5) close assistance of counsel was available to a ...