The opinion of the court was delivered by: James H. Jarvis United States District Judge
This matter came before the court on January 17, 2007, on defendant's motion to set aside guilty plea [Doc. 19]. After carefully considering the parties' briefs [Docs. 20 and 29], the arguments of counsel, and the entire record in this case, especially the transcript of the change of plea hearing held on April 17, 2006 [see Doc. 30], the court orally granted defendant's motion and reset this matter for trial on April 17, 2007. The purpose of this memorandum and order is to clarify further the court's reasons for doing so in light of the applicable law.
On March 7, 2006, the grand jury returned a three-count indictment charging the defendant as follows: (1) possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (count one); (2) possession with intent to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count two); and (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (count three) [see Doc. 1]. On April 7, 2006, Paula R. Voss, Assistant Federal Community Defender, was appointed to represent the defendant at his initial appearance and arraignment [see Docs. 2 and 3]. On April 17, 2006, the defendant signed a cooperation plea agreement [see Doc. 9 (filed under seal)] and entered pleas of guilty to counts two and three of the indictment.*fn1
The parties and the court were aware at the time of the guilty plea that the defendant had a lengthy criminal history and would likely qualify as a career offender under the Sentencing Guidelines.*fn2 Thus, the only way that the defendant could obtain any potential relief from an onerous sentence was to assist law enforcement authorities in on-going criminal investigations in anticipation of receiving a motion for downward departure for substantial assistance. See Fed. R. Crim. P. 35(b). To that end, the United States agreed that it would not oppose the defendant's motion for release pending sentencing after entry of the guilty plea to allow defendant time to undertake those activities. Paragraph 14 of the plea agreement specifically provides as follows:
14. As part of his plea agreement, the United States agrees to not oppose the Defendant's motion for release pending sentencing. The defendant understands that under the provisions of Title 18 U.S.C. § 3143, et seq., he would normally be held without bond and that the United States is agreeing to his release solely to allow the defendant, as part of his plea agreement, to assist law enforcement officials in the investigation of serious ongoing criminal activity. He further understands and expressly agrees that if, in the opinion of the United States, his continued release becomes unnecessary for any reason, his bond will be revoked and he will be returned to custody. By signing this plea agreement he also irrevocably agrees and consents that upon ex parte application of the United States[,] an order revoking his bond will immediately be entered by the court and an arrest warrant issued. He further understands and expressly agrees that his agreement pursuant to this paragraph will be a condition of his release and will be incorporated into the court order setting such conditions.
[See Doc. 9, pp.5-6 (filed under seal)].
However, things did not go as the parties anticipated after entry of the guilty plea. Upon reviewing the defendant's extensive criminal history and given the further fact that a number of firearms were present when the defendant was arrested, this court could not in good conscience acquiesce to defendant's request -even with the government's approval - that he be released pending sentencing. Consequently, the defendant was ordered immediately into custody at the conclusion of the change of plea hearing. A review of the record reflects the following exchange regarding defendant's detention at the conclusion of that hearing:
The Court: ... Now, the U.S. Attorney wants to turn this man loose; don't you?
Mr. Stone [AUSA]: We do, Your Honor, for good cause.
Mr. Stone: We believe we do, Your Honor, for good cause. We believe, hopefully, he can do a little bit better than that. You don't think so?
The Court: Not on this kind of charge, not in the condition that he is in. I think we need to get on and get him in a nice facility somewhere and get him in a clean place where he can get some good food, get some medical treatment for his back, and let him get back on with his life and get this served and get back home. He's out here trying to do something that I don't think is very good. He needs to keep on a straight road.
Ms. Voss: Your Honor, if I could please. We have had some extensive conversations with the agents involved in this case and they have some very specific things they would like him to try to do. And our plea today was on the basis that we --
The Court: They are going to have to find somebody else, Ms. Voss, and I hope they do. I'm not going to respond to that.
I'm not going to stick my neck out for him.
I am looking at his record. Judges have been sticking their neck out for him for a long time and he disappointed them every time. And I'm not going to have that on my conscience. That's just the way I feel about it. He gets out here and kills somebody in an automobile --Ms. Voss: He lets his girlfriend do his driving or people pick him up. He has a job waiting for him. We brought him in here as quickly as we did on the premise that we could get him out to get something done here --
The Court: Do you want to withdraw your plea?
Ms. Voss: We probably will need to do that, Your Honor, on the possibility of advice of counsel. I was under the impression and I let him to believe under federal conditions he --
The Court: Did he understand that I had to approve that?
Ms. Voss: Yes. But I thought if we had the agreement of counsel and conditions from Pretrial that we could do that for him.
The Court: Ordinarily, I would. But, I mean, this man is a career criminal.
Ms. Voss: Well, yes he is. I mean, under the Guidelines he is, which is even more of a reason why he was willing to try to go and do something for himself.
The Court: Ms. Voss, you have a very tender heart.
Ms. Voss: Well, I've spent quite a bit of time with Mr. Tindell. And one of the things that most impresses me is what ...