UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

UNITED STATES OF AMERICA, ) CRIMINALACTION NO.

)

Plaintiff, )           7:02-CR-12-ALL

)

v. )

)

XXX XXX, )

)

Defendant. )

)

MOTION TO WITHDRAW GUILTY PLEA

XXX XXX seeks to withdraw his guilty plea.  In support of this motion he requests ahearing at which he could show that it is in the interest of justice for theCourt to allow him to withdraw his guilty plea.

1.When XXX was arrested the circumstances admittedly suggested guilt.  In short, he was driving a car that wasfollowing a recreational vehicle in which several individuals were transportingten kilograms of cocaine. XXX XXXwas carrying a firearm for which he had a license.

2.From the outset, XXX maintained his innocence. He claimed that he had been duped into undertaking thejourney by Guadalupe Gonzalez, his companion in the car he was driving.

3.Gonazalez’s lawyer informed counsel that his client maintained that he had, infact, duped XXX. Gonzalez, who hadconfessed and was confronted with possibly a fifteen year prison sentence,declined to cooperate at least in part because he would not implicate XXX.

4.  Gonzalez, and the other co-defendantsin the case, all executed affidavits stating that XXX had no knowledge of thetrue nature of the trip.

5.  If convicted at trial, XXX would faceat least a fifteen year prison sentence. The government, nevertheless, offered XXX a plea agreement by which hewould receive only a five year sentence.

6.  Despite this attractive plea agreement,XXX continued to maintain his innocence and the offer was initially declined.

7. At ameeting with XXX’s family, counsel informed them, that in counsel’s estimation,that given the totality of the circumstances of the case, XXX’s chances atprevailing at trial were no better than 50%. Given the risk of losing and the penalty if the trial waslost, the family decided to try to persuade XXX to plead guilty.  Counsel stated that he thought thedecision should be left to XXX.

8.  Two days later XXX informed counselthat he wanted to enter the plea agreement after having visited with hismother. Although counsel advisedXXX that he would hear no more protestations of innocence from XXX if he signedthe plea agreement, counsel was uncomfortable with the situation, because,counsel believed XXX’s mother had placed undue influence on him.  Counsel perceived that the relationshipbetween the mother and son were such that the mother could wield such undueinfluence.

9.  At the rearraignment, MagistrateStickney, asked counsel if the plea was consistent with counsel’s advice.  Counsel, feeling awkward, replied,“This is solely the decision of my client.”

10.  Recently, counsel learned that XXXwanted to withdraw the plea. Apparently, XXX had written the Court expressing his dissatisfactionwith the situation, but the district clerk’s office erroneously sent a copy ofthe letter to Francisco Hernandez, XXX’s prior counsel.  Mr. Hernandez then faxed a copy of theletter to counsel.

11.  Counsel then met with XXX and learnedthat XXX was not really distressed with counsel as the letter seemed tosuggest, but mostly concerned with withdrawing his plea.  After that meeting, counsel agreed tofile this motion on XXX’s behalf.

12.  Rule 32(e) of the Federal Rules ofCriminal Procedure provide that a district court may grant a motion to withdrawa guilty plea prior to sentencing if the defendant shows “any fair and justreason.”

13.In United States v. Carr, 740 F.2d 339,344 (5th Cir.1984), the Court held that in reviewing the denial of a motion towithdraw a guilty plea, the Court would consider the following factors:

a)whether the defendant asserts his innocence;

b)whether the withdrawal would prejudice the government;

c)whether the defendant delayed in making the request;

d)whether the withdrawal would inconvenience the court;

e)whether adequate assistance of counsel was available;

f)whether the plea was knowing and voluntary;

g)whether the withdrawal would waste judicial resources.

Theburden of establishing a “fair and just reason” falls on the defendant. United States v. Brewster, 137 F.3d 853, 858 (5^th Cir. 1998).

14. In thiscase, the defendant is asserting his innocence, and would like to present thetestimony of his mother, in addition to his own and his counsel’s at a hearingon this motion.

15. Inaddition, this Court should consider that this is not the usual motion beingmade after a defendant is disappointed with his presentence report.  If anything, this Court should considerrejecting the plea agreement because it is too favorable to the defendant. Whereas the other co-defendants are receiving sentences ofapproximately thirteen years, XXX, who, if guilty, is guilty of the same crime,is receiving a sentence of fiveyears.

Respectfullysubmitted,

______________________________

MickMickelsen

Tx.Bar 14011020

Broden& Mickelsen

2715Guillot Street

Dallas,TX 75204

(214)720-9552

(214)720-9594 (facsimile)

Attorneyfor Defendant

XXXXXX

CERTIFICATE OF SERVICE

I,Mick Mickelsen, certify that on April 23, 2002, I caused the foregoing documentto be served by hand-delivery, on Chad E. Meacham, Assistant United StatesAttorney, 1100 Commerce Street, Third Floor, Dallas, Texas 75244.

______________________________

MickMickelsen

CERTIFICATE OFCONFERENCE

Iconferred with Chad Meecham on this motion and he opposes it.

______________________________

FranklynMickelsen

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

UNITED STATES OF AMERICA, ) CRIMINALACTION NO.

)

Plaintiff, )           7:02-CR-12-ALL

)

v. )

)

XXX XXX, )

)

Defendant. )

)

ORDER

XXXXXX request that his plea be withdrawn. After holding a hearing on the motion, the Court finds that it is in thebest interest of justice to withdraw the plea. It is SOORDERED.

Trialon this matter is set for: ________________

____________________________________

UNITEDSTATES DISTRICT JUDGE

JERRYBUCHMEYER