JAMES M. MUNLEY, District Judge.
Before the court is Defendant Jamal McKay's motion to dismiss the indictment on the basis of selective and/or vindictive prosecution. (Doc. 17). The parties have briefed this matter and it is ripe for disposition. For the following reasons, defendant's motion will be denied.
Defendant Jamal McKay (hereinafter "defendant") filed the instant motion to dismiss in response to the second federal indictment entered against him. In this second indictment, defendant is charged with failing to appear as required, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(I). The facts relevant to defendant's instant motion to dismiss are as follows.
First Federal Indictment and Subsequent Proceedings
On September 7, 2011, agents from the Drug Enforcement Agency filed a two-count criminal complaint against defendant, which alleged that defendant distributed and conspired to distribute cocaine base ("crack"). (Doc. 1 in No. 3:11cr275). Defendant was arrested and presented for an initial appearance on September 8, 2011. At the initial appearance, Magistrate Judge Blewitt appointed the federal public defender as counsel and ordered defendant detained pending trial. (Docs. 7, 9 in No. 3:11cr275).
On September 20, 2011, a grand jury sitting in this district entered a two count indictment against defendant. (Doc. 17 in No. 3:11cr275). Count I charged defendant with knowingly and intentionally conspiring to unlawfully distribute, and possess with the intent to distribute, in excess of 28 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), and 846. Count II charged defendant with knowingly, intentionally and unlawfully distributing and possessing with the intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On September 28, 2011, defendant was arraigned before Magistrate Judge Blewitt and entered a plea of not guilty. (Doc. 24 in No. 3:11cr275).
Defendant and the government submitted a signed plea agreement on March 19, 2012. (Doc. 49-2 in No. 3:11cr275). In this plea agreement, defendant and the government stipulated to the following:
On or about and between January 1, 2008, and the date of this indictment, the defendant conspired to distribute and possess with intent to distribute in excess of 28 grams of cocaine base ("crack") but less than 112 grams of cocaine base ("crack"), and an unspecified amount of cocaine. Pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C), the defendant shall be sentenced to 60 months in prison, a term of supervised release of at least 4 years thereafter, to be determined by the court, a fine, if any, to be determined by the Court, and a $100 special assessment.
(Id.) Thus the plea agreement provided that defendant would enter a guilty plea to Count I of the indictment and be sentenced to sixty months in prison, the mandatory minimum period of imprisonment for the offense at issue. (Id.) Defendant and the government agreed that either could withdraw from the plea agreement in the event that the court imposed a term of imprisonment outside of sixty months. (Id.)
The court held three change of plea hearings. At the first hearing, on April 4, 2012, defendant expressed his uncertainty as to whether he wished to proceed with a guilty plea. (Doc. 52 in No. 3:11cr275). On May 11, 2012, the court held a second change of plea hearing, during which the court did not accept defendant's change of plea because defendant disagreed with the government's statement of the facts. (Doc. 55 in No. 3:11cr275). The court held a third change of plea hearing on June 11, 2012, and, after a thorough plea colloquy, the court accepted defendant's guilty plea. (Doc. 79 in No. 3:11cr275, N.T. at 3-18). The court scheduled defendant's sentencing for September 13, 2012.
At the June 11, 2012 change of plea hearing, the court also granted defendant's request to be released from detention for approximately two weeks to allow him the opportunity to place his affairs in order prior to his sentencing. (Doc. 79 in No. 3:11cr275, N.T. at 18-19). The government did not oppose defendant's request, and on June 19, 2012, the court ordered defendant released to the supervision of pretrial services. (Doc. 63 in No. 3:11cr275). Defendant was ordered to surrender to the custody of the United States Marshals Service by noon on July 3, 2012. (Id.)
Failure to Appear on July 3, 2012 and Subsequent Sentencing
On June 29, 2012, defendant requested an extension in time in which to report to the U.S. Marshals because he needed to "obtain all of his personal affects and secure them." (Doc. 64 in No. 3:11cr275). The court denied ...