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United States v. Merriweather

United States District Court, S.D. Illinois

June 5, 2017




         This matter comes before the Court on defendant Jerome Merriweather's motion to withdraw his guilty plea (Doc. 241). The Government has responded to the motion (Doc. 244). The Court held a hearing on the motion on April 26, 2017, at which both sides declined to introduce evidence, and the Court took the motion under advisement.

         I. Background

         On October 6, 2015, a grand jury indicted Merriweather on one count of conspiracy to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a) and (b)(1)(B) and on three counts of distribution of heroin in violation of 21 U.S.C. § 841(a) and (b)(1)(C). Represented by attorney Cheryl R. Whitley, on April 7, 2016, Merriweather pled guilty to all four counts pursuant to a written plea agreement accompanied by a stipulation of facts. Prior to accepting the plea, the Court conducted a plea colloquy that substantially complied with Federal Rule of Criminal Procedure 11. During the plea hearing, it was noted that it was not clear whether Merriweather would qualify as a career offender. Further details of the written plea documents and the colloquy will be set forth later in this order as necessary to the Court's analysis. Prior to sentencing, the Court allowed Whitley to withdraw as counsel and appointed new counsel (twice) to represent Merriweather. Following an initial presentence investigation report finding Merriweather was, indeed, a career offender, Merriweather moved to withdraw his guilty plea to all four counts.

         II. Motion to Withdraw Guilty Plea

         A defendant may withdraw a guilty plea before sentencing if he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see United States v. Weathington, 507 F.3d 1068, 1071 (7th Cir. 2007); United States v. Walker, 447 F.3d 999, 1004 (7th Cir. 2006). However, Rule 11(d) is “not a free-swinging backdoor.” United States v. Hodges, 259 F.3d 655, 661 (7th Cir. 2001). On the contrary, “the ‘fair and just' Rule 11(d)(2)(B) escape hatch is narrow.” United States v. Mays, 593 F.3d 603, 607 (7th Cir. 2010). There are generally three grounds justifying withdrawal of a guilty plea: (1) actual innocence, (2) legal innocence and (3) the plea was not knowing and voluntary. Mays, 593 F.3d at 607.

         The defendant bears the burden of showing “a fair and just reason” and has an uphill battle where a thorough Rule 11 colloquy has taken place. Weathington, 507 F.3d at 1071; United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). A defendant's testimony during a plea colloquy is presumed to be true, and the Court may discredit inconsistent statements offered later to justify withdrawing the plea. Weathington, 507 F.3d at 1072. “A defendant's motion to withdraw is unlikely to have merit if it seeks to dispute his sworn assurances to the court.” United States v. Graf, 827 F.3d 581, 584 (7th Cir. 2016), cert. denied, 137 S.Ct. 1329 (2017).

         A. Defendant's Position

         In his motion, Merriweather argues that his guilty plea was unconstitutional because it was “shoved down his throat” by the United States Attorney's Office and effectively offered him no benefit, that is, it was a contract unsupported by consideration. Specifically, he argues that the possibility of a sentence reduction under Federal Rule of Criminal Procedure 35 for substantial assistance to the Government is not a benefit conferred by the plea agreement because he could obtain such a reduction even without a plea agreement so long as he cooperated with the Government. He further notes that although the Government promised in the agreement to recommend a sentence within the guideline range found by the Court, it did not agree to recommend a sentence at the low end of that range.

         Merriweather further argues that the plea agreement was an unconscionable contract of adhesion to which he should not be bound. He believes he should be able to rescind the agreement because the Government infringed on his right to substantive due process during the bargaining process by insisting on unconscionable terms. Merriweather asserts a gross inequality of bargaining power, unreasonable or oppressive terms, and deceptive language in the agreement. He argues that the Government has forced him to waive certain constitutional and statutory rights in the agreement - such as, for example, appellate, statute of limitations, double jeopardy and speedy trial rights - in the event Merriweather materially breaches the plea agreement, even if the breach is reasonable in the circumstances. See Plea Agrmt.§ III, ¶ 3.

         Additionally, Merriweather argues that his guilty plea was not knowing and voluntary because his counsel was constitutionally ineffective in her advice leading to the plea and that, had he received competent representation, he would not have chosen to plead guilty. He bases this argument on the bare fact that counsel advised Merriweather to plead guilty pursuant to a plea agreement he finds offensive, as described above. At the hearing on the motion to withdraw his guilty plea, Merriweather withdrew his ineffective assistance of counsel argument (he had not supported it with any evidence detailing his counsel's performance) so as not to hamper his effort to raise the argument later on collateral review.

         B. Government's Position

         In response, the Government argues that Merriweather has presented no fair and just reason to allow him to withdraw his guilty plea. It notes that Merriweather is not contesting that his sworn statements in his plea colloquy were true or that he committed the offenses to which he pled guilty. On the contrary, it points out that he is only complaining that the plea agreement is unfair.

         The Government argues the plea agreement was well-supported by consideration from the Government. The Government points to several benefits Merriweather received in the agreement: a recommendation for a within-guideline sentence regardless of the range the Court found; a recommendation for a three-point offense level reduction for acceptance of responsibility; an agreement not to prosecute Merriweather in the Southern District of Illinois ...

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