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United States v. Thomas

United States District Court, N.D. Indiana, Fort Wayne Division

October 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FLOYD D. THOMAS, Defendant.

          AMENDED OPINION AND ORDER

          Damon R. Leichty Judge, United States District Court

         The court files this amended order to reflect the now correctly numbered ECF docket entries. Mr. 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 482. 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 482.

         BACKGROUND

         In 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.

         After 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. Id.

         Two 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. ECF 445.

         On 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.

         After 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, 495. The court granted the motion pending new appointment of counsel. ECF 496. Before Mr. O'Malley withdrew his appearance, 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.

         The 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.

         STANDARD

         When a 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)).

         DISCUSSION

         Mr. Thomas argues that his plea should be withdrawn because of Rehaif v. United States, 139 S.Ct. 2192 (2019). The court disagrees.

         Foremost, 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 ...


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