The opinion of the court was delivered by: Slomsky, J.
Defendant Carlos R. Martinez has filed a Coram Nobis Petition to Vacate Guilty Plea, Specifically Relating to the Charge of [18 U.S.C. §] 924(c) (Doc. No. 445) and a Reply, which includes a Motion to Withdraw His Guilty Plea Pursuant to Federal Rule of Criminal Procedure 11(d) (Doc. No. 456). On May 9, 2012, the Government filed a Response in Opposition. (Doc. No. 448.) After considering the arguments made in the briefs of the parties and the record in this case, the Court will deny Defendant's Coram Nobis Petition (Doc. No. 445) and Motion to Withdraw his Guilty Plea (Doc. No. 456).
On April 28, 2010, a grand jury returned a Superceding Indictment (Doc. No. 9) charging Defendant in two (2) counts with the following offenses: (1) Conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and (2) Aiding and abetting the use and carry of a firearm during a violent crime, in violation of 18 U.S.C. §§ 924(c) and 2.
On June 14, 2011, Defendant entered a plea of guilty to both offenses pursuant to a written plea agreement. (Doc. No. 350.) On May 1, 2012, almost eleven months after his guilty plea and prior to sentencing on the two charges, Defendant filed the instant Coram Nobis Petition to Vacate Guilty Plea, Specifically Relating to the Charge of [18 U.S.C. §] 924(c). (Doc. No. 445.) As noted, on May 9, 2012, the Government filed a Response in Opposition. (Doc. No. 448.) On May 21, 2012, Defendant filed a Reply, which includes a Motion to Withdraw his Guilty Plea Pursuant to Federal Rule of Criminal Procedure 11(d). (Doc. No. 456.)*fn1
For reasons discussed below, the Court will deny Defendant's Coram Nobis Petition (Doc. No. 445) and Motion to Withdraw His Guilty Plea (Doc. No. 456).
1. Motion to Withdraw Guilty Plea
Defendant seeks to withdraw his guilty plea and raises this request in his Reply amending his initial Petition. (Doc. No. 456.) This new Motion is made pursuant to Fed. R. Crim. P. 11(d). For reasons that follow, the Motion to Withdraw the Guilty Plea will be denied.
"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 burden is on the defendant to prove a fair and just reason. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). "A simple shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to force the government to incur the expense, difficulty, and risk of trying a defendant, who has already acknowledged his guilt before the court." United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by statute on other grounds as stated in, United States v. Roberson, 194 F.3d 408, 417 (3d. Cir. 1999). See also United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). When evaluating a motion to withdraw a guilty plea, a court must consider: 1) whether the defendant asserts his innocence; 2) defendant's reasons to withdraw his plea; and 3) the prejudice the government would incur by the withdrawal. Brown, 250 F.3d at 815.
On June 14, 2011, the Court held a hearing at which Defendant entered his guilty plea. The plea was made pursuant to a written plea agreement in which Defendant agreed to, inter alia, enter a plea to Count V charging him with use and carry of a firearm during a violent crime, in violation of 18 U.S.C. § 924(c), and aiding and abetting, in violation of 18 U.S.C. § 2. At the hearing, the Court questioned Defendant, and the Government proffered evidence that would have been introduced if the case had gone to trial. The transcript reveals the following facts which concern Defendant's Motions here:
The Court: Are you feeling alright today?
The Court: Do you understand that you're in court today . . . to enter a guilty plea in this case?
The Court: All right. And have you been able to hear and understand me all right? Defendant: Yes.
The Court: Have you received a copy of the superseding indictment?
The Court: And have you read it?
The Court: And has your lawyer explained the nature and elements of the charges against you and fully explained your trial rights ...