The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Marcus Brown's ("Brown") motion to vacate his guilty plea. For the reasons stated below, we deny the motion.
Brown was indicted in Count I of the indictment for conspiracy to distribute controlled substances and on September 26, 2007, he pled guilty to Count I of the indictment ("Plea Hearing"). Prior to his Plea Hearing, Brown alleges that his counsel provided him with a copy of a draft plea agreement which did not contain a complete "statement of facts" section, but rather stated at certain points "facts to be inserted." (Mot. 2). According to Brown, he never received a copy of the final plea agreement ("Plea Agreement") and he never went over the facts of the Plea Agreement with his attorney prior to the Plea Hearing. Brown further alleges that the Government made additional changes to the Plea Agreement at the start of the Plea Hearing.
Brown alleges that the changes to the Plea Agreement caused him to be confused about the charges against him. Brown states that this confusion was exacerbated by the fact that at the time of the Plea Hearing, Brown had an 11th grade education and no prior experience with the criminal justice system. Brown alleges that he stopped the proceedings to consult with his attorney on several occasions due to his confusion. Brown has filed the instant motion to vacate his guilty plea pursuant to Federal Rule of Criminal Procedure 11 ("Rule 11"). The Government opposes the instant motion.
Once a court accepts a guilty plea by a criminal defendant, that defendant may withdraw the plea of guilty prior to sentencing only if "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). The statements made by a defendant at the acceptance-of-plea hearing are "given 'the presumption of verity'" and "if the allegations set forth in the motion contradict statements made by the defendant at an acceptance-of-plea hearing which satisfied the requirements of Rule 11, . . . the allegations must overcome [that presumption]." United States v. Redig, 27 F.3d 277, 280 (7th Cir. 2004)(quoting in part United States v. Trussel, 961 F.2d 685, 689-90 (7th Cir. 1992)). There is no absolute right to withdraw a guilty plea once it has been accepted by the court and it is the defendant's burden to show that withdrawal of the guilty plea is appropriate under Rule 11. United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003); United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994).
Brown argues, in support of his motion, that the totality of the circumstances weigh in favor of vacating his guilty plea. Brown argues that the lack of a "facts" section in his draft guilty plea, the complexity of the Plea Agreement, his age and intelligence, and his confusion during the Plea Hearing, demonstrate that Brown's guilty plea was not "'voluntary and intelligent'" and that "fair and just" reasons favor vacating Brown's guilty plea. (Mot. 1)(quoting in part United States v. Saenz, 969 F.3d 294, 296 (7th Cir. 1992)). The Government argues that the record does not support Brown's allegation that he was not provided with the underlying facts of his guilty plea. Furthermore, the Government argues that there are numerous factors that indicate that Brown's plea of guilty was voluntary and intelligent, including: (1) Brown's statements that he was satisfied with his counsel at the Plea Hearing, (2) the ample time and ability that Brown had to meet and speak with counsel, (3) the fact that Brown stated at the Plea Hearing that he had reviewed the final Plea Agreement with his counsel prior to signing it, and (4) the fact that the court reviewed the factual basis of the Plea Agreement at the Plea Hearing and Brown acknowledged the facts set out in the factual basis section. (Ans. 3-4).
I. Factual Basis Underlying the Plea
The Government disputes Brown's allegation that the draft plea agreement provided to him at the Plea Hearing was incomplete, and that Brown "never went over the facts in the actual plea entered before the change of plea hearing." (Mot. 2) The Government argues that Brown's assertion is not supported by the record and, in fact, it is directly contradicted by Brown's own statements at the Plea Hearing. As noted by the Government, Brown made no reference to these alleged deficiencies with respect to the factual basis underlying the Plea Agreement at the Plea Hearing. (Ans. 3). Furthermore, Brown acknowledged the facts outlined in the Plea Agreement. (Ans. 4). In fact, Brown himself described to the court what he did relating to the offense to which he was pleading guilty. (Mot. 3).
Brown's statements at the Plea Hearing directly contradict his allegations in the instant motion regarding his ability to review the underlying facts for the crime to which he was pleading guilty. The Seventh Circuit has stated that in instances where "the allegations set forth in the motion contradict statements made by the defendant at an acceptance-of-plea hearing . . . the allegations must overcome the 'presumption of verity' that attaches to such statements." Redig, 27 F.3d at 280 (quoting in part Trussel, 961 F.2d at 689-90). In support of Brown's argument that he did not review the underlying facts, Brown submits a draft Plea Agreement that does state in several places "facts to be inserted." (Mot. Appx. 1). However, the mere fact that a previous draft Plea Agreement may have existed that did not include a complete recitation of the facts does not establish that Brown never reviewed the facts of the final Plea Agreement. Brown indicated at the Plea Hearing that he had read the facts of the Plea Agreement and that he agreed with those facts. (Tr. 29). Brown has not pointed to any evidence that would overcome the presumptive truth of Brown's statements that he had reviewed the facts of the Plea Agreement. Therefore, we agree with the Government that Brown has not demonstrated that he was provided with an incomplete version of facts in his Plea Agreement and that he did not review the facts prior to pleading guilty, particularly in light of Brown's own statements under oath to the contrary at the Plea Hearing.
II. Brown's Claim of Confusion
Brown argues that the record reflects that he was confused during the Plea Hearing. In support of this argument, Brown points to the fact that he stopped the proceedings on three occasions to consult with his counsel. (Mot. 3). However, as the Government points out, the fact that Brown stopped the proceedings to consult with counsel after being invited to do so by the court does not constitute evidence that Brown was confused. The first instance where Brown consulted with counsel was with respect to the $100 special assessment imposed. (Tr. 13-14). Brown's counsel explained on the record that the off-the-record consultation with Brown related to the consequences of not paying the special assessment. (Tr. 13-14). The second instance where Brown consulted with counsel related to the issue of whether Brown would receive credit for time already served. ...