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United States v. Strother

United States District Court, E.D. Texas

April 8, 2019

UNITED STATES OF AMERICA
v.
MACEO STROTHER

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the report of the United States Magistrate Judge in this action, such matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636. On March 21, 2019, the Report of the Magistrate Judge (#122) was entered containing proposed findings of fact and recommendations that Defendant's “Motion to Withdraw Defendant's Plea of Guilty” (#91) be denied. On April 2, 2019, Defendant filed Objections to the Report and Recommendation (#124). On April 3, 2019, the Government filed a Response (#125). Having received the report of the Magistrate Judge, having considered Defendant's objections and the Government's response, and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report should be adopted.

         RELEVANT BACKGROUND

         After Defendant entered a guilty plea before the Magistrate Judge on August 2, 2018, an Initial Presentence Investigation Report (“PSR”) was filed on November 1, 2018, recommending a sentence of 46 months' imprisonment (#83 at 17). Subsequently, on November 19, 2018, Defendant filed his Motion to Withdraw Plea of Guilty seeking to withdraw his guilty plea (#91). In the same Motion, Defendant additionally sought to substitute his initial counsel, Paul Morgan (“Morgan”). Defendant's request for new counsel was granted, and Ron Uselton (“Uselton”) was appointed as new counsel for Defendant (#96). Uselton adopted Defendant's Motion to Withdraw Plea of Guilty on December 10, 2018, informing the Court that Defendant intended to proceed with the Motion (#99). After receiving the Government's opposition to Defendant's request (#101), the Court held a full evidentiary hearing on the Motion to Withdraw Plea of Guilty on December 27, 2018 (#104). Defendant testified on his own behalf asserting that he was actually innocent, did not have close, effective assistance of counsel, and did not enter his plea knowingly or voluntarily (#104 at 28, 35). Aside from his own testimony, Defendant did not proffer any other witness testimony or evidence to the Court in support of his assertions. Subsequent to the hearing, the Magistrate Judge took the matter under advisement to allow defense counsel an opportunity to review each of the recordings referenced at the hearing. On January 8, 2019, defense counsel Uselton filed a Notice Regarding Proffered Evidence (#108). On January 14, 2019, prior defense counsel Morgan filed an Affidavit for consideration in connection with the matter (#114). Thereafter, the Motion was ripe for consideration.

         On March 21, 2019, the Magistrate Judge entered a written Report and Recommendation, recommending that the Court deny Defendant's request to withdraw his plea (#122). Specifically, the Magistrate Judge concluded that upon a balancing of the totality of the Carr factors-and after specifically addressing each factor in turn-Defendant should not be permitted to withdraw his guilty plea (#122 at 15). On April 2, 2019, Defendant filed objections to the Report and Recommendation alleging again that he was innocent, he did not have close assistance of counsel, his plea was not knowingly and voluntarily made, his Motion was timely, and-for the first time-that the change of plea did not meet the requirements of Rule 11 of the Federal Rules of Criminal Procedure (#124). The Government filed a response in opposition on April 3, 2019 (#125).

         OBJECTIONS TO REPORT AND RECOMMENDATION

         Defendant raises six (6) objections to the conclusions of the Magistrate Judge: (1) the Court's consideration of Defendant's assertion of innocence “is not consistent with the standards set out by the 5th Circuit;” (2) the Court's reliance on the testimony of Special Agent Jennifer McCarty was in error; (3) Defendant's Motion was not untimely; (4) Defendant's guilty plea was not made knowingly or voluntarily; (5) there is no significant prejudice to the Government to prepare this case for trial; and (6) Defendant's change of plea did not meet the requirements of Rule 11 of the Federal Rules of Criminal Procedure (#124).

         Actual Innocence

         Defendant asserts that he is actually innocent because he did not “knowingly” possess the firearm at issue (#124 at 2). Defendant contends that “he had no understanding that to ‘knowingly possess' was a necessary element of Count One until he did further research after the plea hearing” (#124 at 2). Defendant's contentions are not supported by the record. The transcript of Defendant's plea hearing specifically demonstrates that at the time of the plea, Defendant was well aware of the essential elements of the charge, including the knowledge element. In fact, his knowledge was repeatedly discussed prior to entry of his plea:

The Court: [At this time], I'll have the government summarize the charge and I'm going to have them do one other thing, okay? I'm going to have him read to you what is called the essential elements of this offense. Those are the elements that the Government would have to prove at trial if you were actually going to be convicted of this charge. So just listen very carefully.
Defendant Strother: Yes.
Mr. Gonzalez: Your Honor, Count One of the Indictment charges a violation of Title 18, United States Code, Section 922(g)(1), Felon in Possession of a Firearm. The essential elements that must be proven are as follows:
No. 1. That the defendant knowingly possessed the firearm as charged.
The Court: All right. Did you [Defendant] also understand each of those three essential elements that were ...

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