United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY JUDGE
Floyd Thomas was charged with six counts of different
drug-related charges. ECF 57. He has twice pleaded guilty to
counts one and two of the indictment in open court, once in
front of Magistrate Judge Susan Collins (ECF 285) and once in
front of Chief Judge Theresa Springmann (ECF 449). After
both, Mr. Thomas filed a motion to withdraw his guilty plea.
ECF 297 and 495. Although the court granted Mr. Thomas'
first motion to withdraw his guilty plea before the
recommendation had been accepted (ECF 300), his second motion
must be denied. ECF 495.
2014, a grand jury charged Mr. Thomas with six counts,
including one count of conspiring to possess and distribute
cocaine, one count of possessing a firearm in furtherance of
a drug trafficking crime, and four counts of distributing
heroin. ECF 57. With Mr. Thomas, five other individuals were
charged in the conspiracy to distribute cocaine. Id.
years of motions to continue and plea bargaining, Mr. Thomas
entered a guilty plea on September 21, 2017 to the first two
counts of the indictment-the conspiracy charge and possession
of a firearm in furtherance of a drug trafficking crime. ECF
285. At the plea hearing, the magistrate judge found that Mr.
Thomas was competent; that he understood the nature of the
charges against him; that he knowingly waived his rights;
that he knew the maximum possible sentence for his charges;
that there was a factual basis for his plea; and that he
knowingly and voluntarily entered his plea. ECF 285, 287. The
magistrate judge recommended acceptance of his guilty plea.
weeks later, before the recommendation's acceptance, Mr.
Thomas filed a motion to withdraw his guilty plea. ECF 297.
Chief Judge Springmann granted the motion to withdraw his
plea, and later scheduled his trial for April 16, 2018. ECF
300, 349. After several motions to continue, the parties
submitted a plea agreement for Mr. Thomas on January 8, 2019.
January 10, 2019, the court held a second change of plea
hearing for Mr. Thomas. ECF 449. At the hearing, the court
made several findings, including that Mr. Thomas understood
the proceeding's significance, the charges against him,
and that the plea was knowing and voluntary based as it was
on a factual basis covering the essential elements of the
crimes. Id. The court accepted his plea and deferred
acceptance of the binding plea agreement until sentencing.
Id. The court issued its sentencing scheduling order
on January 11, 2019. ECF 451.
the final presentence investigation report and sentencing
memoranda, Mr. Thomas' attorney, Mr. Thomas O'Malley,
asked the court to grant his motion to withdraw as attorney.
ECF 466, 480. The court granted the motion pending new
appointment of counsel. ECF 480. A day later, on May 16,
2019, Mr. Thomas filed the instant motion to withdraw his
plea of guilty. ECF 482. On May 26, Mr. Donald Swanson
appeared for Mr. Thomas. ECF 498. About two months later, Mr.
Thomas filed his brief supporting the withdrawal of his
guilty plea. ECF 513.
case was reassigned to this presiding judge on September 4,
2019. On September 9, 2019, the court received a letter from
Mr. Thomas attempting to supplement his brief in support of
his motion to withdraw his guilty plea. ECF 516. The
government responded to the motion on September 12, 2019, and
it thus became ripe for decision.
guilty plea has been accepted, a defendant may withdraw such
plea before sentencing occurs upon a showing of a “fair
and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). A defendant does not have an absolute
right to withdraw a plea, and he bears a heavy burden of
persuasion in showing that such a fair and just reason
exists. United States v. Chavers, 515 F.3d 722, 724
(7th Cir. 2008). “[T]here is no absolute right to
withdraw a guilty plea . . . and a defendant seeking to do so
faces an ‘uphill battle after a thorough Rule 11
colloquy.'” United States v. Bradley, 381
F.3d 641, 645 (7th Cir. 2004) (quoting United States v.
Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003)).
Thomas argues that his plea should be withdrawn because of
Rehaif v. United States, 139 S.Ct. 2192 (2019). The
the defendant in Rehaif was charged under 18 U.S.C.
§ 922 (felon in possession statute) while Mr. Thomas
pleaded guilty to conspiring to possess with the intent to
distribute 5 kilograms or more of cocaine (21 U.S.C. §
846) and possessing a firearm in furtherance of a drug
trafficking crime (18 U.S.C. § 924(c)). These are
different statutory provisions-with different elements. The
“prohibited status” that required a