The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This criminal case is before the court on defendant Victor Manuel Alvarado's ("Alvarado") motion to withdraw his guilty plea, pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B) ("Rule 11"). The court heard oral argument on the motion on March 9, 2009. Subsequently, the court requested supplemental briefing on the motion, in light of new arguments raised by Alvarado's counsel at the oral argument. (See Minute Order, filed March 12, 2009.)*fn1 The court has reviewed the supplemental briefing, and considering it, as well as the original briefing and the arguments of counsel at the hearing, the court HEREBY GRANTS Alvarado's motion. An intervening change in the law provides a "just and fair" reason to permit Alvarado to withdraw his guilty plea in this case.
On July 26, 2007, the government forwarded its first formal plea offer to Alvarado's retained counsel, Percy Martinez ("Martinez"). (Ex. B to Gov't's Opp'n, filed Feb. 6, 2009.) It required Alvarado to plead guilty to the conspiracy count and to agree that the base level was 36, that two points should be added for possession of a dangerous weapon, and that three points should be added because he was a manager or supervisor. (Id. at 6.)
On November 13, 2007, the court scheduled a jury trial for May 6, 2008. (Docket #40.) On January 4, 2008, the government provided notice to all counsel that it would seek a superceding indictment on January 24, 2008, adding charges that Alvarado and others had violated 18 U.S.C. § 924(c). (Ex. C to Gov't's Opp'n.) On January 9, 2008, the government rejected Alvarado's counsel's offer that Alvarado be allowed to plead guilty without accepting an enhancement for an aggravating role. (Id. at Ex. D.) The government instead offered to accept Alvarado's plea, leaving the enhancement issue open to argument at sentencing. (Id.)
On January 24, 2008, the grand jury returned the superceding indictment, adding a charge against Alvarado for using a firearm in furtherance of a drug trafficking offense under Section 924(c). On March 25, 2008, the government again proposed a plea agreement to Alvarado; this agreement contemplated a cooperation agreement which would have included a role enhancement. (Id. at Ex. F.) On April 4, 2008, the government informed Alvarado that if the pending offer was not accepted by the trial confirmation hearing on April 14, 2008, it would be withdrawn. (Id. at Ex. G.)
Alvarado indicated he was interested, and on April 9, 2008, he met with the government's counsel and agents to make a proffer. The government determined that Alvarado was not credible and withdrew the cooperation offer the following day. (Id. at Ex. H.) Subsequently, the government made a package plea deal to five of the remaining defendants. (Id. at Ex. I.) According to the terms of the offer, Alvarado would have to plead guilty to the conspiracy and to the Section 924(c) charge, and the government retained the ability to argue that he should be given an enhancement for his role in the offense. (Id.)
On April 14, 2008, Alvarado appeared before the court and confirmed for trial. (Docket #68.) On April 30, 2008, Alvarado filed his trial brief stating: "At this trial, [he] will concede and admit that all of the [charges] [against him] are true," and Alvarado is proceeding to trial only to adjudicate "whether or not [he] should receive an enhanced punishment for leadership in connection with the charged offenses." (Docket #97.)
In response to this brief, the government informed Alvarado that it believed the issue of the applicability of a guideline enhancement is for the court to determine at sentencing, not the jury. The government forwarded yet another plea offer, excising Alvarado from the package deal, leaving the issue of a role enhancement open to argument at sentencing, and obligating the government to recommend a reduction for acceptance of responsibility regardless of Alvarado's right to contest the role enhancement. (Ex. J to Gov't's Opp'n.) In response, Alvarado's counsel requested the ability to present argument and evidence in support of departures for overstated criminal history and drug/alcohol abuse, and on May 4, 2008, the government forwarded an amended version of the agreement containing those rights. (Id. at Ex. K.)
On May 5, 2008, Alvarado entered guilty pleas to counts one and three of the superceding indictment, charging, respectively, conspiracy to distribute and to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 and 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The plea agreement provided that the court could, "in its discretion impose any sentence it deems appropriate up to and including the statutory maximum stated in this Plea Agreement." (Docket #108 at 2.) It further stated that Alvarado understood "that neither the prosecutor, defense counsel, nor the Court can make a binding prediction or promise regarding the sentence [he] will receive." (Id.) It stated that the maximum allowable penalty on both of counts one and three was life in prison, and that there was a mandatory minimum penalty of ten years imprisonment on count one and five years on count three, and that the sentences had to be served consecutively. (Id. at 4-5.) The agreement also included various guideline stipulations, including the following:
Role in Offense: The parties agree that the applicability of any enhancement pursuant to U.S.S.G. § 3B1.1(b) may be determined by the Court at sentencing. The defendant retains the right to present argument and evidence that the enhancement does not apply, and the government is free to do the same in support of an enhancement of up to three levels under U.S.S.G. §3B1.1. The government will continue to recommend a reduction for acceptance of responsibility despite the defendant's reservation of rights to contest this issue. (Id. at 6-7.)
At the beginning of his Rule 11 colloquy, Alvarado swore to tell the truth. (Ex. L to Gov't's Opp'n at 3.) He affirmed that he was "fully satisfied with the advice and representation" given to him by his attorney. (Id. at 5.) He affirmed that his plea was made pursuant to the terms of the written plea agreement, and the government then set forth its essential terms. (Id. at 5-7.) Alvarado affirmed that the government accurately outlined the essential terms of his agreement. (Id. at 7.) The court then asked Alvarado, "Has anyone made any other promises to you to induce you to enter a plea of guilty aside from those contained in this agreement?" (Id. at 7-8.) Alvarado answered, "No." (Id. at 8.)
The court reviewed the maximum penalties Alvarado faced, and he affirmed that he understood them. (Id. at 8-9.) Alvarado stated he had discussed the sentencing guidelines with his attorney and that he understood that the court was not bound by the guidelines. (Id. at 9-11.) At the close of the proceeding, the court found that Alvarado's guilty pleas were knowing and voluntary, and they were entered upon the records of the court. (Id. at 18.) Sentencing was set for August 4, 2008. (Docket #106.)
However, Alvarado's sentencing was continued twice at his request to October 20, 2008. (Docket #s 167, 178.) Thereafter, on October 14, 2008, Alvarado requested and received new counsel, and his sentencing was reset to January 12, 2009. (Docket #223.) On October 24, 2008, Alvarado sent the court a hand-written request to withdraw his plea, making a number of accusations against Martinez. (Docket #234.) Alvarado's sentencing was continued one ...