Opinion
No. 00-94.
December 13, 2000.
ORDER AND REASONS
Before the Court is defendant Damone Bourgeois' Motion to Withdraw his guilty plea. For the following reasons, defendant's motion is DENIED.
BACKGROUND
On August 3, 2000, defendant Damone Bourgeois pled guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922 (G)(1) and 924 (A)(2) and to possession of crack with the intent to distribute in violation of 21 U.S.C. § 841 (A)(1). The Court accepted a plea bargain agreement, under which Bourgeois agreed to accept a term of imprisonment of 120 months. This term constitutes a downward departure from Bourgeois' sentencing guideline range of 130-162 months.
Bourgeois now moves the Court to withdraw his plea of guilty.
LAW AND ANALYSIS
"There is no absolute right to withdraw a guilty plea." United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997). Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just cause." The Supreme Court has held that the "fair and just cause" requirement must be taken very seriously: "After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea," a defendant should not be allowed to "withdraw his guilty plea simply on a lark."United States v. Hyde, 520 U.S. 670, 676 (1997).
The Fifth Circuit has adopted a totality of the circumstances test to determine whether a motion to withdraw a guilty plea should be granted, and the following factors must be considered: (1) whether the defendant asserted his innocence, (2) whether withdrawal would prejudice the government, (3) whether the defendant delayed in filing the withdrawal motion, (4) whether withdrawal would inconvenience the court, (5) whether adequate assistance of counsel was available, (6) whether the plea was knowing and voluntary, and (7) whether withdrawal would waste judicial resources. Grant, 117 F.3d at 789 (quoting United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
In the case at bar, Bourgeois claims that his plea was not knowing and voluntary. Specifically, he claims he was not aware that he would waive his appellate rights by pleading guilty to a plea agreement. However, before accepting Bourgeois' plea, the Court explicitly found that his plea was knowing and voluntary, that he understood the plea agreement, and that he agreed with the factual basis. At the rearraignment, the Court explained to Bourgeois that, by pleading guilty under a plea agreement, Bourgeois would only be able to appeal (1) any punishment imposed in excess of the statutory maximum, and (2) any punishment to the extent it constitutes an upward departure from the applicable guideline range. The Court further explained that Bourgeois was waiving his right to contest his sentence in a post-conviction proceeding. Bourgeois stated under oath that he understood these waivers, and the Fifth Circuit has held that a defendant cannot refute his testimony given at a plea hearing while under oath. See United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985) (holding that "solemn declarations in open court carry a strong presumption of verity"). Accordingly, the Court finds that Bourgeois' plea was knowing and voluntary.
Bourgeois also wishes to withdraw his plea in order to re-urge his motion to suppress the New Orleans Police Department's search of his residence. However, the Court has already conducted a hearing on this motion and determined that the police had consent to enter Bourgeois' residence and that the search was reasonable.
Finally, the Court finds that the remaining factors set forth by the Fifth Circuit weigh heavily against allowing Bourgeois to withdraw his plea. First and most importantly, Bourgeois does not claim he is innocent. In addition, Bourgeois failed to move to withdraw his plea until he stood before the Court at sentencing, over three months after the Court entered his guilty plea. Finally, Bourgeois has been competently represented by counsel who obtained a significant downward departure from the sentencing guidelines.
CONCLUSION
Because the defendant failed to prove a fair and just reason for withdrawing his plea of guilty, Damone Bourgeois' motion to withdraw his guilty plea is DENIED.