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United States v. Livingston

United States District Court, E.D. Michigan, Southern Division

April 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PIERRE LIVINGSTON, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA (DOC. 671)

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is a criminal case. Defendant Pierre Livingston (Livingston) was one of 24 defendants to be indicted on controlled substance, firearm, and animal fighting charges (Doc. 22). Of those, 21 defendants pled guilty, one was murdered, and one was convicted at trial. On July 17, 2017, Livingston pled guilty pursuant to a Rule 11 plea agreement to one count of Conspiracy to Possess with Intent to Distribute Controlled Substances in violation of 21 U.S.C. §§ 846 & 841(a)(1), and one count of Conspiracy to Attend an Animal Fighting Venture in violation of 18 U.S.C. § 371 and 7 U.S.C § 2156(a). The Court accepted the plea and found it free and voluntary. (See Doc. 651).

         On December 11, 2017, the parties and the Court held a status conference on the record in which Livingston said that he wanted new counsel and to withdraw his guilty plea. (Doc. 670). He obtained new counsel and has now filed a motion to withdraw guilty plea (Doc. 671) to which the government has responded (Doc. 680). For the reasons that follow, Livingston's motion is denied.

         II. BACKGROUND

         The statement of facts from the government's response brief reads as follows:

The Grand Jury indicted Pierre Livingston along with twenty-three co-defendants on July 29, 2015 in the Second Superseding Indictment. That indictment charged Livingston, in count one, with Conspiracy to Possess with Intent to Distribute Controlled Substances. Over 500 grams or more of a mixture and substance containing a detectable amount of cocaine and 28 grams or more of a mixture and substance containing a detectable amount of cocaine base were attributed to Livingston. As a result, Livingston faced a 5-year mandatory minimum sentence with a 40-year statutory maximum sentence. The Second Superseding Indictment also charged Livingston in Count Five, Conspiracy to Sponsor and Exhibit an Animal Fighting Venture, and to Buy/Sell, Deliver, Possess, Train, and Transport Animals for Participation in an Animal Fighting Venture.
The Court divided the defendants into three trial groups; Livingston was part of Trial Group B. Defendants pleaded guilty at different times as the case progressed. Ultimately, only one defendant in Trial Group A, Erik Carter, went to trial and was convicted by jury on count one on March 3, 2017. (R.474, Jury Verdict Form Erik Carter). The Court set the Group B jury trial for August 7, 2017, with a plea cutoff of June 1. (R. 489, Notice to Appear as to Group B).
The government and Livingston had engaged in plea negotiations throughout the case. The government proposed Rule 11 agreements as far back as April 15, 2016. On May 10, 2017, the government proposed a Rule 11 agreement substantially similar to the one that Livingston eventually agreed to on July 17. In its email accompanying the Rule 11 the government detailed the parameters of the plea and what the government believed it could prove if the case proceeded to trial. (Exhibit A)
First, in the current Fourth Superseding Indictment (R.373, filed July 13, 2016), Livingston's Rule 11 offer carried the 5-year mandatory minimum with a conservative guideline estimate of 2667 grams of cocaine and 43 grams of cocaine base. Second, the attorneys for both parties believed Livingston qualified for a potential Safety Valve sentence with guidelines of 37 months at the bottom. Third, without Safety Valve, the only offer the government could make was 5-years incarceration. Finally, that the government believed that the evidence at trial will show that the defendant conspired to distribute over 5 kilograms of cocaine. Therefore, if the defendant rejected the plea, the government intended to seek the Fifth Superseding Indictment with charges in accordance with the evidence to be presented at trial.
Livingston appeared for pre-trial conference on June 12, 2017. (Minute entry dated June 12, 2017). Livingston rejected the Rule 11 offer. His attorney at the time, Cena White, requested the Court extended the plea cutoff to July 17, 2017, three weeks before trial. The Court also set a pretrial conference for the same date. (R. 538, Notice to Appear, Pierre Livingston). The Grand Jury returned the Fifth Superseding Indictment on June 22, 2017, charging Livingston with conspiring to possess with intent to distribute over 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine, carrying a 10-year mandatory minimum sentence. On July 17, 2017, Livingston negotiated the elimination of two sentences in the dogfighting factual basis. He then pleaded guilty to the Rule 11 plea agreement (R. 553); with the lower penalties under count one in the Second Superseding Indictment, 40-year maximum and a 5-year mandatory minimum. The Rule 11 stated, “the court must sentence the defendant to a mandatory minimum sentence of 60 months unless the Court finds that the defendant qualifies for a sentence below this mandatory minimum under the safety valve, 18 U.S.C. § 3553(f).” (Id., PgID 1835) Rule 11 also stated, “The defendant acknowledges that the decision of whether or not the defendant is eligible for the safety valve will be made by the court and a finding that the defendant does not qualify is not a basis to withdraw from the instant Rule 11 agreement.” (Id., PgID 1837)
United States Probation interviewed Livingston in preparation of the Presentence Investigation Report. Probation's report, dated September 5, 2017, determined that Livingston did not qualify for sentencing under Safety Valve. (Presentence Investigation Report, ¶94) Unbeknownst to the government or Livingston's attorney, Livingston was convicted for Possession with Intent to Distribute Cocaine in the Eastern District of Michigan on August 3, 2001, and sentenced to incarceration and supervised release. He completed the supervised release in 2004. (Id., ¶45)
On December 11, 2017 . . . Livingston stated that he wished to withdraw his plea.

(Doc. 680).

         III. ...


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