United States District Court, W.D. Pennsylvania
CATHY BISSOON, District Judge.
Presently before the Court are Defendant's Motion to Withdraw Plea of Guilty (Doc. 101) and Motion to Reject Plea Agreement (Doc. 103). After careful consideration, and for the reasons stated below, Defendant's Motion to Withdraw Plea of Guilty (Doc. 101) will be denied. The Court will defer ruling on Defendant's Motion to Reject Plea Agreement (Doc. 103) until the Court reviews any supplemental information or memoranda with respect to sentencing.
On April 17, 2012, a federal grand jury returned a two-count indictment against Defendant Damon Agurs. Defendant was charged with conspiracy to distribute and possess with the intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846 (Count 1), and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 2). Shortly thereafter, Defendant requested a pre-plea presentence investigation report, which the Probation Office issued on June 26, 2012. The pre-plea report indicated that Defendant was a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines.
After the disposition of pretrial motions, the parties informed the Court that Defendant and the Government had entered into a plea agreement. Accordingly, the Court held a change of plea hearing on February 5, 2014. During the hearing, the Court learned that the parties had agreed, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that Defendant should be sentenced to a 120-month term of imprisonment. In exchange for Defendant's guilty plea to Count II of the indictment, the Government agreed to dismiss Count I, the conspiracy charge. The Court informed Defendant of his rights, found that his plea was knowing and voluntary, and accepted his plea of guilt. The Court, however, deferred whether to accept or reject the terms of the Rule 11(c)(1)(C) plea agreement until after the completion of a presentence investigation report.
The final presentence investigation report ("PSIR") was filed on April 11, 2014, and was disclosed to Defendant, the Government and the Court. Consistent with the pre-plea presentence investigation report, the PSIR indicated that Defendant was a career offender pursuant to § 4B1.1 of the Sentencing Guidelines. On April 21, 2014, Defendant filed his Position with Respect to Sentencing Factors (Doc. 88), raising, for the first time, an objection to his career offender status. Specifically, Defendant argued that his prior conviction for resisting arrest could not count as a predicate "crime of violence" because it was "not counted separately under U.S.S.G. § 4A1.1(a), (b) or (c)." (Doc. 88 at 2). In support of his argument, Defendant relied on an opinion from the United States Court of Appeals for the Eighth Circuit, United States v. King , 595 F.3d 844 (8th Cir. 2010). Shortly thereafter, Defendant filed a Motion for a Status Conference (Doc. 89), to which the Government filed a response in opposition (Doc. 90).
On April 25, 2014, the Probation Office filed an addendum (Doc. 91) to the PSIR, disagreeing with Defendant's position that he was not a career offender. After careful consideration of Defendant's argument, the Court issued an Order (Doc. 93), on May 2, 2014, denying Defendant's Motion for a Status Conference. In the Order, the Court indicated its agreement with the reasoning set forth in the Probation Office's addendum, and to the extent the Probation Office's reasoning was contrary to United States v. King , 595 F.3d 844 (8th Cir. 2010), the Court explicitly rejected the reasoning in King .
Subsequently, Defendant filed a Motion for Reconsideration (Doc. 98), asking the Court to vacate its May 2, 2014 Order and schedule a status conference. The Court granted the motion, only to the extent that it sought a status conference, and scheduled such a conference for July 23, 2014. Prior to the conference, however, Defendant filed a Motion to Withdraw Plea of Guilty (Doc. 101) and Motion to Reject Plea Agreement (Doc. 103). As such, the Court converted the July 23, 2014 status conference into a motion hearing, where it heard oral argument on Defendant's pending motions. As such, the Motion to Withdraw Plea of Guilty (Doc. 101) is now ripe for disposition.
Defendant argues, in his Motion to Withdraw Plea of Guilty (Doc. 101) that he should be entitled to withdraw his guilty plea because of his "mistaken belief" that he was a career offender. The Court disagrees, because: (1) the Court continues to stand by its decision in the May 2, 2014 Order that Defendant is indeed a career offender; and (2) even if Defendant was not a career offender, Defendant has still not met his burden of showing that he has a fair and just reason to withdraw his plea.
1. Career Offender Status
Under § 4B1.1(a) of the United States Sentencing Guidelines, a defendant is a "career offender" if:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony ...