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United States v. Luu

United States District Court, Fifth Circuit

January 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DUC MINH LUU, Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief District Judge.

Defendant Duc Minh Luu ("Luu") moves to withdraw his guilty plea. For the reasons that follow, the court denies the motion.

I

On August 24, 2011 Luu was indicted on one count of sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. § 1591, and on two counts of monetary transactions in proceeds of a specified unlawful activity, in violation of 18 U.S.C. § 1957. Luu was arrested on September 16, 2012. The indictment was unsealed, and Luu's initial appearance was conducted, on September 19, 2012.

On September 21, 2012 Luu's counsel filed a request to determine competency, which the court granted. After the psychological evaluation was completed, the court conducted a competency hearing on January 11, 2013, finding that Luu was competent to stand trial.

Luu obtained court approval and funding for a competency evaluation to be conducted by his own expert, with the assistance of a Vietnamese-language interpreter. After this evaluation was completed and his own expert found him competent to stand trial, the court was advised that the parties had reached a plea agreement and that Luu intended to plead guilty. A plea agreement, sealed plea agreement supplement, and factual resume were filed on July 2, 2013. On August 30, 2013 Luu appeared before the court, and, with the assistance of a Vietnamese-language interpreter, pleaded guilty to counts two and three of the indictment: the counts charging that Luu had engaged in monetary transactions in proceeds of a specified unlawful activity, in violation of 18 U.S.C. § 1957. The court scheduled sentencing for December 13, 2013. The probation officer disclosed the presentence report ("PSR") on November 8, 2013.

On December 2, 2013 Luu filed the instant motion for withdrawal of guilty plea. In a two-page motion (one page of which is a signature page), Luu moves to withdraw his guilty plea on the following two grounds: first, he "claims that his interest was not effectively represented due to misinterpretation regarding the Plea Agreement and Factual Resume signed on July 2, 2013"; and, second, he

further claims that his attorney and the government had tricked and coerced him into entering the plea without detailed explanation of the elements of the offense in which he pled guilty. Specifically, he denies the underlying "unlawful activity" of the Money Laund[ering] counts he previously pled guilty because that was improperly interpreted and/or misrepresented to him.

Mot. Withdraw 1. The government opposes Luu's motion. On the same day she filed the motion to withdraw guilty plea, Luu's attorney filed a motion to withdraw as Luu's counsel. The government does not oppose that motion, which the court is granting today by separate order.

II

Fed. R. Crim. P. 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."

A defendant does not have an absolute right to withdraw his guilty plea. When requesting withdrawal before sentencing, the defendant must show a fair and just reason for the request. When determining whether a fair and just reason has been shown, a court considers the factors set forth in United States v. Carr . The factors include whether (1) the defendant has asserted his innocence, (2) the government would be prejudiced, (3) the defendant delayed in requesting the withdrawal, (4) the court would be substantially inconvenienced, (5) the close assistance of counsel was available, (6) the plea was knowing and voluntary, (7) the withdrawal would waste judicial resources, and as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, or the reasons why a defendant delayed in making his withdrawal motion.

United States v. Washington, 480 F.3d 309, 316 (5th Cir. 2007) (quoting United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003), Rule 11(d)(2)(B), and United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)) (footnotes, brackets, and quotation marks omitted). "A mere change of mind is insufficient to permit the withdrawal of a guilty plea before sentencing." Id. at 316-17 (quoting United States v. Glinsey, 209 F.3d 386, 397 (5th Cir. 2000) (brackets, internal quotation marks, and ellipsis omitted). "Withdrawal is permitted for pleas unknowingly made; the purpose is not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty." Id. at 317 (quoting Carr, 740 F.2d at 345) (brackets and internal quotation marks omitted).

"The defendant bears the burden of establishing a fair and just reason for withdrawing his plea." Powell, 354 F.3d at 370 (citing United States v. Brewster, 137 F.3d 853, 858 (5th Cir. 1998)). "The district court's decision to permit or deny the motion is based on the totality of the circumstances." Id. (citing Brewster, 137 F.3d at 858). "[T]he district court is not ...


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