The opinion of the court was delivered by: Judge Jack Zouhary
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Keven McIntyre's Motion to Withdraw Plea of Guilty (Doc. No. 59) pursuant to Federal Rule of Criminal Procedure 11(d). The Government filed an Opposition to the Motion (Doc. No. 60). Defendant pled guilty to one count of possession of child pornography on October 3, 2008. Defendant notified the Court of his intent to file the instant Motion on November 20, 2008. The Court held a hearing on November 24, 2008 on the pending Motion.
This matter began with the filing of a Complaint on February 13, 2008 (Doc. No. 1). A one-count Indictment was issued on March 5, 2008 (Doc. No. 13). An arraignment hearing was held on March 12, 2008 at which Defendant pled not guilty. On April 9, 2008, the Court granted a Joint Motion requesting an additional 21 days to file motions and conduct plea negotiations (Doc. No. 17). On May 20, 2008, the Court granted Defendant's request to review the computer images (Doc. No. 25). At the end of May, the Court granted Defendant two extensions to file a motion to suppress, which ultimately was filed on June 1, 2008 (Doc. Nos. 26-30). The Court denied the Motion to Suppress (Doc. No. 42). The Court then extended the plea deadline at Defendant's request to July 24, 2008 (Doc. No. 45), at which time Defendant indicated his intent to proceed to trial (Doc. No. 46). On August 7, 2008, the Government filed a Superseding Indictment, which added two additional counts (Doc. No. 50). At an August 18, 2008 arraignment, Defendant pled not guilty to all three counts, and on that date the Court set a trial date of October 14, 2008. On August 27, 2008, the Court granted Defendant's Motion to Appoint expert witness Wayne Marney (Doc. No. 54) to assist with a review of the computer images.
On October 3, 2008, Defendant withdrew his pleas of not guilty and entered a plea of guilty to Count Three of the Superseding Indictment -- possession of child pornography shipped via interstate commerce in violation of 18 U.S.C. § 2252(a)(5)(B). This is the same count contained in the original single-count Complaint. The Court accepted Defendant's plea but reserved approval of the plea agreement until sentencing. The Court set a sentencing date of December 29, 2008.
Defendant now seeks to withdraw his October 3, 2008 guilty plea as to Count Three of the Superseding Indictment.
Under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure, a defendant may withdraw a plea of guilty or nolo contendere after the court accepts the plea, but before it imposes a sentence, if the defendant can show a "fair and just reason" for requesting the withdrawal. See United States v. Hyde, 520 U.S. 670, 671 (1997).
A recent Sixth Circuit opinion outlines the factors a district judge is to consider when evaluating whether a defendant has presented a "fair and just reason" for withdrawing a plea under Rule 11(d)(2)(B). In United States v. Dixon, 479 F.3d 431 (6th Cir. 2007), the defendant sought to withdraw his guilty plea nearly two years after it was entered but before he was sentenced. The district judge denied the defendant's motion to withdraw his guilty plea, and the Sixth Circuit affirmed.
The Dixon court first held that it is the defendant's burden to demonstrate that there is a "fair and just reason" for allowing the withdrawal. Id. at 436. The court noted "[t]he purpose of Rule 11(d) is to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice." Id. (emphasis added) (internal quotations omitted).
The Dixon court outlined several non-exclusive factors to be considered when evaluating whether a defendant has met his burden of establishing a "fair and just reason":
(1) the amount of time that elapsed between the plea and the motion to withdraw it;
(2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant's nature and background; (6) the degree to which the defendant has had prior experience with the criminal ...