defendant before a plea of guilty is accepted. However, "the amendment does not require the court to specify which guidelines will be important or which grounds for departure might prove to be significant." Advisory Committee Note to 1989 Amendment.
Second, the court specifically advised Rainone that the superseding indictment contained guideline and non-guideline counts but the court could not determine the guideline sentence until after the pre-sentence investigation report had been completed. Furthermore, the court also advised Rainone that it had the authority in certain circumstances to impose a sentence that is more severe or less severe than the sentence called for in the guidelines, that parole has been abolished under the guidelines, and that the court may also sentence him to a term of supervised release. After this colloquy, the court then told Rainone whether a particular count was a guideline or non-guideline count.
Finally, Rainone's statement in his affidavit that he was counting on 10-13 years and would not have pled guilty if he thought his sentence would be so much higher than 13 years is suspect. Importantly, Rainone's affidavit contradicts his statement during the Rule 11 hearing that he understood he faced up to 120 years imprisonment.
Furthermore, this position directly contravenes the court's admonition to Rainone that the final decision on his sentence rested with the court. Lastly, the defendant properly recognizes that sentencing disappointment is not a sufficient reason to withdraw plea agreements. See United States v. Knorr, 942 F.2d 1217, 1220 (7th Cir. 1991).
Fourth, Rainone posits that he did not have sufficient time to reflect upon, consider and waive his Fifth Amendment right against self-incrimination. This argument is based on the fact that during the plea hearing AUSA Gair cautioned Rainone that statements he made could be used against him in future indictments. During the plea AUSA Gair stated that while the U.S. Attorney and the grand jury had not yet acted he fully expected Rainone would be indicted in another case in the future. Ostensibly in support of his argument that he was not aware of this fact until the time of the hearing, Rainone relies on Agran's statement "he told me that aspect today." (Tr. 15.)
However, Agran's statement may not be viewed in isolation. Rainone does not cite to Agran's statement in its entirety. Agran responded to AUSA Gair's comments as follows: "I am aware that they were going to -- he told me that aspect today I am aware, and he has been telling me for months, that they are going to indict him on another charge. I made Mr. Rainone aware of that. The specifics of it I still don't know, but I know as much as Mr. Gair has said." (Tr. 15.)
Furthermore, the court explained to Rainone the implications of his guilty plea to any other potential case. When the court specifically asked Rainone if he understood, Rainone affirmatively answered. In this court's view, Rainone knew about the other potential case and made a voluntary and knowing decision to plead guilty notwithstanding any future indictment.
E. Conditional Plea
Fifth, Rainone claims that his denial of certain facts at his plea hearing demonstrates that he was pleading conditionally to the entire indictment and that he therefore did not enter a voluntary plea. What Rainone initially attempted to do was qualify his guilty plea by stating that he was guilty except he denied certain allegations regarding the roles of his co-defendants Gus Alex and Nick Gio. At this juncture, the court insisted that Rainone either plead unconditionally or go to trial. After a 10-minute private consultation with his attorney, Rainone then decided to plead guilty without exception.
The court engaged in such colloquy with Rainone to prevent the type of attack Rainone now seeks to make. That Rainone did not wish to admit any wrong doing on the part of his co-conspirators does not undermine the voluntariness of his plea. In point of fact, Rainone decided to plead unequivocally after consultation with his lawyer.
Accordingly, we reject this and all of Rainone's reasons offered in support of his motion to withdraw. Rainone is an intelligent and manipulative individual. We remain convinced, especially after our Rule 11 hearing, that he voluntarily and knowingly entered his plea. He has wholly failed to offer any fair and just reason which would permit him to withdraw his plea of guilty.
Finally, no evidentiary hearing is required on Rainone's motion to withdraw plea in light of the extensive Rule 11 inquiries made by the court before accepting his plea. United States v. Fountain, 777 F.2d 351, 358 (7th Cir. 1985), cert. denied, 475 U.S. 1029 (1986); United States v. Thompson, 680 F.2d 1145, 1152 (7th Cir. 1982), cert. denied, 459 U.S. 1108, 74 L. Ed. 2d 958, 103 S. Ct. 735 (1983); United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.), cert. denied, 479 U.S. 823 (1986). We are firmly convinced that no evidentiary hearing is required. The court had a full and actual opportunity to observe Rainone during the extensive Rule 11 hearing, and we are satisfied that Rainone's plea was voluntarily and intelligently made.
For the reasons stated in this opinion, defendant Mario Rainone's motion to withdraw his plea of guilty to the superseding indictment pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure is denied. Rainone's sentencing date of August 19, 1992 stands.
Date: AUG 06 1992
JAMES H. ALESIA
United States District Judge