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United States v. Cabezas

United States District Court, M.D. Florida, Orlando Division

December 19, 2017

UNITED STATES OF AMERICA
v.
ANDRES FERNANDO CABEZAS

          ORDER

          PAUL G. BYRON, UNITED STATES'DISTRICT JUDGE.

         This cause is before the Court on Defendant ANDRES CABEZAS' Motion to Withdraw Guilty Plea. The Court has reviewed the Defendant's motion, the transcript of the change of plea colloquy, and the file. The Court does not require a response by the United States Attorney's Office, and having considered the affidavits and memorandum submitted by counsel does not require an evidentiary hearing in this matter. The Court finds that Defendant CABEZAS knowingly, voluntarily, and without threats or coercion plead guilty to Counts One of the Superseding Information and, at all times material hereto, acted with and upon the advice of counsel. For the reasons set forth in greater detail below, the Defendant's Motion to Withdraw Guilty Plea is DENIED.

         I. Procedural History

         Defendant Cabezas was arrested on May 31, 2017, pursuant to a Criminal Complaint. (Doc. 1). The Office of the Federal Defender was appointed to represent the Defendant that same day. (Doc. 4). On June 21, 2017, the Defendant's private counsel filed a notice of appearance. (Doc. 15). On June 28, 2017, a federal grand jury sitting in Orlando, Florida, returned an Indictment charging the Defendant with enticing a minor to engage in sexual activity.[1] (Doc. 16).

         This case was thereafter scheduled for the September 5, 2017 trial term. (Doc. 24). On Defendant's motion, the trial was continued to the October 2017 trial term, and the deadline to disclose expert witnesses was extended. (Docs. 38, 39). The case was subsequently set for a date-certain trial commencing on November 7, 2017. (Doc. 50).

         During the course of this litigation, the Defendant filed a Motion to Compel Brady Material (Doc. 40), Motion to Suppress Post Arrest Statements (Doc. 41), and a Motion to Suppress Evidence. (Doc. 42). On October 16, 2017, the Defendant withdrew these motions. (Doc. 64). On October 18, 2017, the Government filed a Superseding Information, charging the Defendant with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). This offense provides for a mandatory minimum sentence of 5 years imprisonment and a maximum sentence of 20 years. Id. The original offense charged in the Indictment, carries a mandatory minimum of 10 years imprisonment and a maximum sentence of life imprisonment. 18 U.S.C. § 2422(b). The Defendant waived indictment and pleaded guilty to the Superseding Indictment on October 18, 2017. (Docs. 66-67). There being no objection to the Magistrate Judge's Report and Recommendation, this Court accepted the Defendant's guilty plea and adjudicated him guilty on October 20, 2017. (Doc. 77). The Defendant, now represented by newly retained counsel, seeks to set aside his plea of guilty.

         II. Standard of Review

         Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a Defendant may withdraw a plea of guilty after the Court accepts the plea, but before it imposes sentence, if the Defendant can show a fair and just reason for requesting the withdrawal. In determining if the defendant has met his burden for withdrawal, “a district court may consider the totality of the circumstances surrounding the plea, ” including the following:

(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved, and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.

United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). “There is no absolute right to withdraw a guilty plea.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Rather, the “good faith, credibility and weight of a defendant's assertions in support of a motion [to withdraw] are issues for the trial court to decide.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988). Moreover, there is a “strong presumption that statements made during the [plea] colloquy are true.” Medlock, 12 F.3d at 187. Accordingly, the defendant “bears a heavy burden to show his statements [under oath] were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

         A guilty plea may not be knowing and voluntary if the accused does not understand the nature of the constitutional protections he is waiving or has such an incomplete understanding of the charges that his plea cannot be construed as an intelligent admission of guilt. Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir. 1986). Additionally, a guilty plea may not be knowing and voluntary, if the accused does not receive “reasonably effective assistance of counsel in connection with the decision to plead guilty.” McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986). The accused must show that his counsel's performance fell below the threshold level of competence, and he must show that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52, 58 (1985).

         III. The Defendant's Contentions

         The Defendant contends that he “steadfastly maintained his innocence and repeatedly asserted that he did not want a plea agreement.” (Doc. 90, p. 2). The defense proffers that on October 3, 2017, the government made an offer which allowed the Defendant to plead guilty receipt of child pornography. (Id. at pp. 2-3). When faced with this less serious violation of federal law, Defendant Cabezas avers that he “repeatedly told his family that he was innocent and wished to take his case to trial.” (Id.). The Defendant argues that he signed the Plea Agreement only after his family had “placed extensive pressure on him to sign the plea agreement.” (Id. at p. 4). Finally, Defendant Cabezas argues that he was presented with the written Plea Agreement on October 15, 2017-just 3 days before the change of plea hearing-and did not read the entire agreement or receive “explanation as to the ramifications of the items included in the document.” (Id. at pp. 4-5). For these reasons, the Defendant submits that his plea was neither knowing nor voluntary.

         IV. The ...


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