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United States v. Murphy

United States District Court, E.D. Wisconsin

June 7, 2016




         Defendant Willie Murphy moves to withdraw his guilty plea to possession of ammunition as a felon. I held a hearing on the motion, which I now deny, as defendant fails to present a fair and just reason.


         The government charged defendant with possession of a firearm and ammunition as a felon (count one) and possession of marijuana with intent to distribute (count two). On December 14, 2015, defendant pled guilty to count one. The plea agreement set forth the following factual basis:

In April 2014, a confidential informant (hereinafter "CI") told Milwaukee police officers that Willie Murphy sold marijuana out of Apartment 7 at XXXX W. Appleton Ave. in Milwaukee, WI. The CI stated the CI picked up marijuana from Murphy at the apartment on numerous occasions, and had just purchased over a half pound of mid to high-grade marijuana from Murphy. On April 15, 2014, a search warrant was obtained for the apartment.
On April 17, 2014, Milwaukee police officers went to execute the search warrant. Officers ran into Murphy exiting Apartment 7. Murphy told officers that he stayed at Apartment 7, but that no one was currently at home. Murphy then left the building. Next, Officers knocked on Murphy’s apartment door, and S.R. allowed them to enter. During the subsequent search, officers recovered the following items.
In Murphy’s bedroom, officers found 474.45 grams of marijuana; numerous plastic baggies; a digital scale; a .22 caliber German Sport Gun extended magazine; and a Remington .22 caliber bullet. The marijuana and the .22 caliber bullet were both in the closet stored in a black plastic bag with "Buckle" imprinted on it. A latent print recovered from the bag was identified as Murphy’s. Multiple identifiers for Murphy linking him to the address were also recovered. Murphy now admits possessing the ammunition and the marijuana found in his bedroom on April 17, 2014.
In the bathroom, officers found a loaded German Sports Guns, model GSG-5PK, .22 caliber pistol, bearing serial number A289084, with an extended magazine; a loaded Colt, model King Cobra, .357 revolver; and a box of .357 ammunition. The extended magazine recovered from Murphy’s bedroom was also manufactured by German Sport Guns and fit the German Sport Gun found in the bathroom.
On April 21, 2014, Murphy was arrested. He has several prior felony convictions which all remain unreversed. Additionally, the Bureau of Alcohol, Tobacco and Firearms determined the German Sport Gun found in the bathroom, and the .22 caliber Remington bullet found in the bedroom closet were both manufactured outside the state of Wisconsin. As such, they must have traveled in interstate commerce.

(Plea Agreement [R. 21] at 2-4 ¶ 5.) During the plea colloquy, defendant admitted that these facts were substantially correct. (Plea Hr’g Tr. [R. 26] at 4:10-11.) I ordered a pre-sentence report ("PSR"), which was disclosed to the parties on or about February 16, 2016 (Pre-sentence Report [R. 24] at 1), and set the case for sentencing on March 17, 2016, later adjourned to March 30, 2016 at defendant’s request.

         On March 25, 2016, defendant filed a motion to withdraw his plea, claiming that it was not entered knowingly and intelligently because his counsel miscalculated the advisory sentencing guideline range; he further claimed that new information had come to light which would have changed his decision to plead guilty. (Mot. to Withdraw Guilty Plea [R. 27] at 1-3.) In a supporting affidavit, defense counsel elaborated on the bases for the motion.

         Counsel averred that he met with defendant on February 23, 2016, to the review the PSR, which contained a higher guideline calculation than the parties had anticipated. (Aff. in Support of Mot. [R. 31] at 2 ¶ 5.) Specifically, they had failed to account for defendant’s prior conviction for assault by a prisoner, which not only increased the criminal history score but also the base offense level.[1] (R. 27 at 2-3.) Counsel averred that, upon learning this information, defendant immediately inquired about withdrawing his plea. (R. 31 at 2 ¶ 5.) On February 29, 2016, counsel requested a two-week sentencing adjournment to allow defendant additional time to consider his alternatives, and the court continued the sentencing to March 30, 2016. (Id. at 2 ¶ 6.)

         On March 3, 2016, counsel met with defendant to discuss his options, and defendant told counsel he had new information which, if previously known, would have led him to try this case. Specifically, defendant conveyed that he had just discovered that the person previously believed to be the CI was not, in fact, the CI. Further, defendant believed he had discovered by a chance encounter who the CI actually was and that this person’s credibility was subject to impeachment. (Id. at 2 ¶ 7.) Based on this information, in addition to the surprise of the higher guidelines, defendant indicated that he wanted to withdraw his plea. (Id. at 2-3 ¶ 7.)

         On March 16, 2016, counsel met with Sean Rhodes, the lessee of the apartment from which the police seized the contraband in this case and the person previously believed to be the CI. At this meeting, Rhodes indicated that he was willing to testify regarding when defendant stopped residing at the apartment and about others who had access to the apartment prior to the search warrant execution. Counsel explained that this testimony had potential evidentiary value because Rhodes could offer testimony only otherwise available from defendant himself, thus alleviating any strategical need for defendant to testify and expose himself to cross-examination. ...

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