United States v. Gensley

UNITED STATES OF AMERICA, Plaintiff, v. PAUL GENSLEY, Defendant.

No. 19-cr-86-CJW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

May 12, 2020

REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA

I. INTRODUCTION

This case is before me pursuant to Defendant's Motion to Withdraw Guilty Plea. (Doc. 52.) Defendant entered a guilty plea on December 2, 2019, to Conspiracy to Distribute a Controlled Substance in Count 1 of a three-count indictment. Defendant now asserts he is innocent of that charge and that he did not understand what he was pleading to.

The Honorable C.J. Williams, United States District Court Judge, referred this motion to me for a report and recommendation. On May 5, 2020, I held a hearing on Defendant's motion. Defendant declined to offer any evidence. The Government also offered no evidence.

For the reasons that follow, I respectfully recommend that the Court deny Defendant's motion to withdraw his guilty plea.

II. FINDINGS OF FACT

On July 30, 2019, a DEA Task Force Officer signed a Criminal Complaint before me alleging Defendant violated 21 U.S.C. Section 841(a)(1) by possessing methamphetamine with intent to distribute. (Doc. 2 in 19-MJ-263-MAR.) At his August 5, 2019 initial appearance, I appointed Assistant Federal Public Defender Jill Johnston to represent Defendant. Following an August 8, 2019 detention and preliminary hearing, I ordered that Defendant be detained. (Doc. 13 in 19-MJ-263-MAR.)

On August 20, 2019, the grand jury returned a three-count indictment against Defendant charging him with one count of Conspiracy to Distribute a Controlled Substance and two counts of Possession with Intent to Distribute a Controlled Substance. (Doc. 2.)

At 11:00 a.m. on December 2, 2019, Defendant appeared before me and entered a plea of guilty. No transcript of that hearing has been ordered but I have reviewed the audio recording of the hearing. The plea hearing followed a course that is very familiar to this Court and the criminal bar that practices before it. At the beginning of the hearing, Defendant confirmed that he had the opportunity to discuss the charges in detail with Ms. Johnston and that he intended to plead guilty. I confirmed Defendant was agreeable to entering his plea before a United States Magistrate Judge. I placed Defendant under oath and made inquiries to ascertain whether there was reason to believe he was not competent. He appeared competent. I told him that it was important that he understood everything that happened and he confirmed he would stop me if he did not understand something that was said. I also invited him to visit privately with Ms. Johnston if he felt the need.

When I advised him of his constitutional rights, he confirmed he understood his right to counsel. When asked whether Defendant had been generally satisfied with Ms. Johnston's services he stated, "Generally, yes."

I discussed each element of the offense with Defendant. Because Defendant's alleged misunderstanding of the drug quantity is his principal basis for with drawing his plea, I will discuss that exchange in some detail. As per my standard practice, I relied on the written plea agreement and a Rule 11 letter submitted in advance of the plea hearing to discuss the elements of the offense with Defendant. The Rule 11 letter had a minor typographical error:

Four, that the agreement or understanding involved the distribution of 500 grams or more a [sic] mixture and substance containing a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine.

I have made the Rule 11 letter a part of the record by filing it as Court Exhibit 1. The plea agreement that Defendant signed states the same element of the offense without the typographical error:

The agreement or understanding involved at least 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine.

(Doc. 23 at 3 (emphasis added).) The forgoing is derived from the Eighth Circuit Model Jury Instruction 6.21.846A.1 (Apprendi-Affected Conspiracy), which states:

Four, describe aggravating element, e.g [the agreement or understanding involved 500 grams or more of a mixture or substance containing methamphetamine [and 5 kilograms or more of a mixture or substance containing cocaine]]).

Jud. Committee on Model Jury Instructions for the 8th Cir., Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit (2017 ed.) (footnotes omitted).

The following is my transcription of the relevant discussion of this element during the plea hearing:

The Court: Finally, the Government would have to prove that the agreement or understanding involved the distribution of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine. Do you understand the fourth thing the Government would have to prove?

Defendant: And/or or both? I don't understand that part.

The Court: This might be. . . .

Defendant: 500 grams and 50 grams or 50 grams?

The Court: I understand your confusion, I was going to ask Ms. Nydle about that. I think there might be a typographical error in the Rule 11 letter.

Ms. Nydle: Your honor, the Defendant technically only has to admit either the 500 grams or the 50 grams of actual. It can be the same. It can be part of the 50 grams of actual pure can be part of the 500 grams. So potentially depending on what the Defendant is comfortable admitting at this particular moment, I think we can do it as an "and" covering both or an "and/or," but we should be clear on the record which ones he is admitting to.

The Court: All right. Thank you for clarifying that. So, as I understand it, the Defendant can be convicted for this very count if the agreement or understanding involved the distribution of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and/or 50 grams or more of actual (pure) methamphetamine. Is that right, Ms. Nydle?

Ms. Nydle: Yes, Your Honor.

The Court: And Mr. Gensley, I take it you're uncomfortable this morning with admitting that it has both. Is that the case?

Defendant: So, it could be 550 then?

The Court: Well, it'd be 500 grams of a mixture or that mixture could also contain 50 grams of actual pure amphetamine.

Defendant: It can't be one or the other. Okay. Yes, then.

The Court: I don't mean to be slow about this, but I want to make sure that what you're saying yes to.

Defendant: I've seen none of it anyway, so. . . .

The Court: Well, the purpose of this hearing isn't for you to admit to things you don't agree to.

Defendant: Yes, Your Honor.

The Court: And if you have doubts about it and you want to either visit with Ms. Johnston or you don't want to proceed that's, as I've said, entirely your right. But I just want to make sure if you are going to be pleading to something here and what you're factually pleading to is accurate. That's all I'm trying to do here.

Defendant: Okay.

The Court: Do you want to discuss this with Ms. Johnston at this point?

Defendant: No.

The Court: Okay. I'm going to read it with "and" here and I take it you're in agreement with that.

Defendant: Okay.

The Court: The fourth thing the Government would have to prove is that the agreement and/or understanding involved the distribution of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine. Do you understand the fourth thing the Government would have to prove?

Defendant: Yes.

The Court: And is it true that the agreement or understanding involved the distribution of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine.

Defendant: Yes.

Thus, Defendant admitted he had committed each of the elements of the crime charged. I warned Defendant that if he pled guilty and the district court accepted his guilty plea, that he would have no right to withdraw that guilty plea even if he later changed his mind. He acknowledged his understanding of this limitation. Defendant denied that anyone had forced or pressured or threatened him in any way to get him to plead guilty. He affirmatively stated that his decision to plead guilty was a voluntary decision before he formally pleaded guilty.

During the change of plea hearing, I reviewed the plea agreement with the Defendant. Defendant confirmed that he had reviewed the plea agreement in its entirety before he signed it and that by signing it he intended to indicate that he understood and agreed to its terms.

With regard to the Stipulation of Facts, Defendant confirmed that he initialed each of the paragraphs to indicate that the information in those paragraphs was true and correct. As noted above, the facts as initialed by Defendant in the plea agreement state the "mixture or substance contain[ed] a detectable amount of methamphetamine and 50 grams or more of actual (pure) methamphetamine." (Doc. 23 at 3 (emphasis added.) Defendant confirmed that Ms. Johnston had answered all of his questions about the plea agreement and that he had no more questions about it. Ms. Johnston confirmed, among other things, that she had full access the Government's discovery file and that it supported a factual basis for the guilty plea.

Defendant remained in custody after the plea hearing. On December 2, 2019, I filed my Report and Recommendation recommending the Court accept the guilty plea. (Doc. 22). On December 17, 2019, the Court accepted that recommendation, noting that neither party had objected. (Doc. 24.)

The United States Probation Office filed a Draft Presentence Investigation report on January 28, 2020. (Doc. 26.) Defendant filed an objection to this draft report on February 11, 2020. (Doc. 28.) While Defendant takes exception to a handful of facts reported, these...