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United States v. Garba

September 26, 2003

UNITED STATES OF AMERICA,
v.
OSMAN GARBA, DEFENDANT.



FOR PUBLICATION

MEMORANDUM OPINION

This matter comes before the Court on the motion by defendant Osman Garba ("Garba") pursuant to Federal Rule of Criminal Procedure ("Rule") 11(d)(2)(B) to withdraw his plea of guilty before the imposition of sentence. *fn1 Garba claims he should be permitted to withdraw his plea because, inter alia, it was unfair, unjust, unknowing, and entered in violation of both the Sixth Amendment to the United States Constitution and Rule 11. The United States ("the government") opposes the motion on the grounds that, inter alia, Garba fails to produce any fair or just reason justifying withdrawal. Garba's motion will be denied.

BACKGROUND

Garba emigrated from Ghana to the United States in 1983. (Garba Aff. at ¶ 2.) In 1997, Garba returned to Ghana. (Id. at ¶ 4.) A grand jury indicted Garba in August 2000 for, inter alia, conspiracy to distribute and possess with the intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846. (Gov. 2002 Br. at 2.) Garba was arrested and extradited back to the United States in January 2001. (Garba Aff. at ¶ 4-5.)

Garba and the government engaged in intermittent plea negotiations beginning in March 2001. (Id. at ¶¶ 5-7; Gov. 2002 Br. at 2-4.) The sticking point throughout the negotiations centered around the amount of cocaine that the agreement would stipulate was involved in the conspiracy. Garba wished to stipulate to 5 or more kilograms of cocaine, thereby subjecting him to a base offense level of 32 under the Federal Sentencing Guidelines. (Sent. Tr. at 17.) The government was only amenable to a stipulation to at least 15 but no more than 50 kilograms of cocaine, thereby carrying a base offense level of 34. (Id. at 17, 21.) The negotiations stalled.

The parties reached a plea agreement just as Garba's trial was set to commence in March 2002. (Garba Aff. at ¶ 7.) Garba agreed to enter a plea of guilty to conspiring to distribute and possess with the intent to distribute more than 5 kilograms of cocaine. (Gov. Sent. Br., Ex. A, at 1.) In exchange for this plea, the government agreed to move to dismiss all other charges pending against Garba. (Id.) As part of the plea agreement, the government and Garba "agree[d] to stipulate at sentencing" to certain statements. (Id. at 3.) The parties stipulated that "[t]he applicable quantity of powder cocaine is at least 15 but less than 50 kilograms. Accordingly, the base offense level is 34." (Id. at 3, 6.)

The Court held a plea hearing pursuant to Rule 11 to determine whether it would accept Garba's plea of guilty on March 11, 2002. The Court inquired whether Garba was "fully satisfied with the advice and representation that [he was] receiving from [his] attorney in this case," Mr. Rhoads ("Rhoads"). (Plea H'g Tr. at 5.) The Court also asked whether Rhoads had "taken the time necessary to discuss the aspects of [the] case with [him], including the considerations that are important when [he] decide[s] whether to plead guilty." (Id.) Garba responded "Yes" to both questions. (Id.)

The Court then proceeded to review the plea agreement with Garba on the record. (Id.) The Court ascertained that Garba had read and discussed the agreement with Rhoads. (Id. at 6.) The Court noted that Garba would be entering a plea of guilty to "conspiring to distribute and possess with intent to distribute more than five kilograms of cocaine." (Id. at 7.) The Court reiterated to Garba that the plea agreement stated the minimum sentence was ten years, and the maximum was life imprisonment. (Id. at 9.) The Court then addressed the stipulations.

THE COURT: Now, there are certain statements that you and the Government have agreed to . . . . These are called "stipulations" and what they mean, what that word means is that you and the Government have agreed that at the time of sentencing you will not be disputing these points that are relevant to sentencing. You may be disputing other points at the sentencing, but you won't be disputing these stipulated points. Understand? These are agreed statements.

MR. GARBA: Yes, Your Honor.

THE COURT: Stipulation just means a statement which is agreed to by both sides. Now, before we go over the stipulations, I do need to point out that under the plea agreement the sentencing Judge is not required to agree with the stipulations at the time of sentencing. So the court is not bound by your stipulations, but you and the Government are. Understand?

MR. GARBA: Yes, Your Honor.

THE COURT: Also, the Court certainly will consider these stipulations and if the Court agrees, the Court will follow them. All right?

MR. GARBA: Yes, Your Honor.

THE COURT: Have you read each of these stipulations and discussed it with your lawyer? They're part of the plea agreement?

MR. GARBA: Yes, Your Honor.

THE COURT: Okay. You have read each of these stipulations and discussed it with your lawyer, right?

MR. GARBA: Yes, Your Honor.

THE COURT: You don't need for me to read these stipulations to you to make sure that you're aware of them, do you?

MR. GARBA: Yes, Your Honor.

THE COURT: So you don't need me ...


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