The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On September 27, 2007, a grand jury sitting in the Middle District of Pennsylvania handed down a three-count superceding indictment against Paul Surine, Shane Curry and Jimmy Dake, charging them with conspiracy to distribute controlled substances (21 U.S.C. § 846) (Count One); distribution of a controlled substance (21 U.S.C. § 841(a)(1)) (Count Two); and (as against Paul Surine only), possession of a firearm during a drug trafficking crime (18 U.S.C.§ 924(c)(1)) (Count Three).
On May 30, 2008, Surine pled guilty to count one of the first superseding indictment. On September 5, 2008, the court received the pre-sentence report which calculated an advisory guideline range of 360 months to life. On September 9, 2008, the court received a letter written by Surine dated September 6, 2008, that requested a withdrawal of his guilty plea and requested substitute counsel. We classified the letter as two motions, and denied both motions without prejudice because Surine was represented by counsel. On September 15, 2008, Surine's counsel submitted a motion to withdraw as counsel. On September 23, 2008, an ex parte, in camera hearing was held. At this hearing, Surine orally renewed his motion to withdraw his guilty plea. By order dated September 25, 2008, both the motion to withdraw as counsel and the oral motion to withdraw the guilty plea were denied. On March 12, 2009, counsel filed a second motion to withdraw, which was granted on March 16, 2009. On March 17, 2009, Jason F. Poplaski, Esquire was appointed to represent Surine.
Now before the court is Surine's second Motion to Withdraw Plea of Guilty. (Rec. Doc. No. 235). The supporting and opposing briefs were filed timely. (Rec. Doc. Nos. 236 and 245). No reply brief was filed, thus the matter is ripe for disposition.
Now, for the following reasons, the court will deny the motion.
A "defendant may withdraw a plea of guilty . . . 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). "It is the defendant's burden to demonstrate a 'fair and just reason' for withdrawing his or her guilty plea." United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998) (citing Gov't of the Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir. 1980)).
The court must consider three factors in evaluating a motion to withdraw a guilty plea: (1) whether the defendant asserts his innocence; (2) the strength of the defendant's reason to withdraw his plea; and (3) whether the government would be prejudiced by the withdrawal.*fn1 United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001) (citing United States v. Huff, 873 F.2d 709, 711 (3d Cir.1989)). The government need not show prejudice if defendant fails "to demonstrate that the other factors support a withdrawal of [his guilty] plea." United States v. Jones, 336 F.3d 245, 255 (3d Cir. 2003).
(1) Whether the defendant asserts his innocence.
In response to Surine's first motion to withdraw his guilty plea, this court wrote, in our order denying Surine's motion:
Paul Surine is not asserting his innocence. In fact the court has several letters from Surine stating the opposite. In a handwritten letter from Surine dated August 8, 2008, Surine states "At the time I committed [sic] these crimes..." (Rec. Doc. No. 170.) In a letter signed by Surine, included in the presentence report, Surine writes, "I greatly regret having committed this terrible crime," and "Again, I wish to express my sincere regret and remorse for having committed these crimes and taken up your time as well as the time of the prosecutor and attorneys in my case."
The letter from Surine indicating that he wishes to withdraw his guilty plea also does not assert innocence. (Rec. Doc. No. 177.) When questioned by the court about the plea during Surine's ex parte, in camera hearing, Surine stated he wanted to withdraw his guilty plea because he did not know there were other charges*fn2 ; but again, he did not assert his innocence. (Rec. Doc. No. 184 at 8-9). Surine did not then, nor is he now, asserting his innocence. Surine is asserting is that he is not guilty because he has a potential defense to the charges, e.g. he believes the search warrant was defective. (Rec. Doc. No. ...