UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:13-CR-78-TS

)

MARVIN L. BENNETT )

OPINION AND ORDER

This matter is before the Court on the Defendant Marvin L. Bennett’s Motion to

Withdraw Guilty Plea [ECF No. 49]. For the forgoing reasons, the Defendant’s Motion is denied.

BACKGROUND

On July 20, 2015, the Defendant and the Government entered into the following

Stipulation of Facts [ECF No. 54]:1

(1) On November 20, 2013, Bennett was charged in a single count Indictment with

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e) [ECF No. 1].

(2) On March 11, 2014, aware that Bennett’s criminal history would classify him

as an Armed Career Criminal [pursuant to 18 U.S.C. § 924(e)], Bennett’s counsel

requested that government counsel tender a proposed plea agreement for the

15-year statutory minimum [term of imprisonment].

(3) On March 14, 2014, government counsel tendered a proposed Plea Agreement

to Bennett’s counsel.

(4) After reviewing the proposed Plea Agreement with Bennett, on March 28,

2014, Bennett’s counsel filed a Motion to Suppress [ECF No. 18] challenging the

search and seizure of evidence in the case. 

(5) On May 1, 2014, the Court held an evidentiary hearing [ECF No. 21] on

Bennett’s Motion to Suppress.

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The Court has made minor edits for clarity. 
(6) On October 22, 2014, after an evidentiary hearing and briefing by the parties,

the Court issued an Opinion and Order [ECF No. 28] denying Bennett’s Motion to

Suppress. The Court further set the case for a Telephonic Pretrial Conference on

November 4, 2014[,] with a Jury Trial scheduled to begin on November 18, 2014.

On the Court’s own motion, due to a trial scheduling conflict, the Telephonic

Pretrial Conference was reset to November 7, 2014 [ECF No. 29]. 

(7) On October 23, 2014, Bennett’s counsel requested that government counsel

tender a conditional plea that would allow Bennett to plead guilty, receive a

benefit for acceptance of responsibility and preserve his Fourth Amendment

issues.

(8) The Federal Rules of Criminal Procedure provide that a defendant may enter a

conditional plea of guilty with the consent of the Court and the government,

“reserving in writing the right to have an appellate court review an adverse

determination of a specified pretrial motion.” Fed. R. Crim. Proc. 11(a)(2).

(9) On that same day, government counsel sought approval from her Supervisor for

a proposed conditional plea agreement.

(10) On October 24, 2014, government counsel informed Bennett’s counsel that a

conditional plea agreement required the approval of the Appellate Chief, and

advised Bennett’s counsel that if she felt there was an appealable issue . . . her

request for a conditional plea agreement would be forwarded to the Appellate

Chief.

(11) A request for a conditional plea was submitted to the Appellate Chief by

government counsel’s Supervisor.

(12) On October 27, 2014, Bennett’s counsel was advised by government counsel,

that the request for a proposed conditional plea was denied by the Appellate Chief

and that the offer that would be made was a proposed Plea Agreement with a

recommendation for the [3-level sentencing reduction] for acceptance of

responsibility; even if the Appellate Chief had authorized a proposed conditional

plea, under the new procedure, the acceptance reduction would have only been for

2 levels. This new appellate approval procedure was disseminated throughout the

Fort Wayne Office on August 24, 2012, by government counsel’s Supervisor.

(13) On October 27, 2014, another proposed Plea Agreement was tendered to

Bennett’s counsel, which did not contain a conditional plea.

(14) On November 3, 2014, after meeting with Bennett, Bennett’s counsel

requested that government counsel tender a plea agreement which contained a

binding 15-year sentence pursuant to Rule 11(c)(1)(C).

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(15) On that same day, government counsel tendered a proposed binding 15-year

Plea Agreement to Bennett’s counsel. 

(16) On November 4, 2014, Bennett and his counsel met and signed the Plea

Agreement containing the binding 15-year sentence, which did not contain a

conditional plea preserving Bennett’s Fourth Amendment issues.

(17) On that same day, the Plea Agreement with the 15-year binding sentence was

signed by all parties [and] was filed [ECF No. 30]. 

(18) On November 6, 2014, a Rule 11 Change of Plea Hearing was held [ECF No.

33] and Bennett entered his plea of guilty to the single count Indictment before

[United States] Magistrate Judge Roger B. Cosbey consistent with the terms of the

Plea Agreement. 

(19) On that same date, in the Findings and Recommendation of the Magistrate 

Judge Upon a Plea of Guilty [ECF No. 34], Magistrate Judge Cosbey

recommended that the Court accept Bennett’s plea of guilty and that Bennett be

adjudged guilty of the offense charged in the single count Indictment. 

(20) On November 21, 2014, [the] Court entered an Order [ECF No. 35] 

[a]ccepting [the] Findings and Recommendation of the Magistrate Judge and

adjudged Bennett guilty of the offense charged in the Indictment. On the same

date, the Court issued a Sentencing Scheduling Order [ECF No. 36] and set

Bennett’s sentencing for March 4, 2015. 

(21) On January 29, 2015, and February 9, 2015, two letters from Bennett to the

Court, expressing desire to appeal his suppression issues and requesting new

counsel, were docketed [ECF Nos. 38, 40]. 

(22) On February 10, 2015, on the Court’s own motion, the sentencing was

vacated and reset as an In Person Hearing on March 4, 2015 [ECF No. 41]. 

(23) On March 4, 2014, all parties appeared before the Court. The In Person

Hearing was continued to March 17, 2015 [ECF No. 45]. 

(24) On March 16, 2015, government counsel’s Supervisor informed Bennett’s

counsel that after consulting with the office’s Appellate Attorney and the Criminal

Chief, the government would not re-negotiate the plea on Bennett and that the

office was not going to agree to a conditional plea in this case.

(25) On March 17, 2015, Bennett’s counsel filed a Motion to Continue Status

Hearing [ECF No. 46]. The Court granted [the Motion] and reset the In Person

Hearing to March 24, 2015 [ECF No. 47]. 

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(26) On March 24, 2015, a hearing was held and Bennett withdrew his letter

requesting new counsel [ECF No. 48]. 

(27) On April 27, 2015, Bennett’s counsel filed a Motion to Withdraw Guilty Plea.

[ECF No. 49]. 

(28) On March 4, 2015, a conditional plea was approved by the Criminal Chief in

United States v. Cameron Patterson, Cause No. 1:13-CR-65. On March 5, 2015,

[a] conditional plea agreement was filed as docket entry number 86 in the

Patterson case, preserving the right for defendant Patterson to challenge on appeal

the Opinion and Order dated February 21, 2015, which denied his motion to

suppress, and provided for a 3 level reduction for acceptance of responsibility.

Government counsel’s Supervisor and Criminal Chief advise that the 3 level

reduction for the acceptance of responsibility in the Patterson case was given by

mistake, but will be honored by the government.

On July 24, 2015—following receipt of the parties’ Stipulation of Facts—the

Court conducted a telephone conference with the parties and established a briefing

schedule for the Motion to Withdraw Guilty Plea [ECF No. 49]. The Defendant filed a

Brief in Support of the Motion to Withdraw Guilty Plea [ECF No. 63] on January 25,

2016, arguing that withdrawal is appropriate because the Government’s denial of his

request for a conditional guilty plea violated the Equal Protection Clause of the Fourteenth

Amendment. In making this argument, the Defendant presents a “class-of-one” equal

protection theory. The Government filed a Response [ECF No. 66] on March 31, 2016,2

and this matter is now fully briefed and ripe for ruling.3

2

The Defendant was granted up to and including April 15, 2016, to file a reply. The filing

deadline has since passed.

3

The Court notes that on April 29, 2016—two weeks after the briefing deadline on the Motion to

Withdraw Guilty Plea had passed—the Defendant, who is represented by counsel, filed two pro se

submissions [ECF Nos. 67–68]. The Court anticipates addressing these pro se submissions in a separate

order. 

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LEGAL STANDARD

Federal Rule of Criminal Procedure 11 governs a defendant’s request to withdraw a plea

of guilty. It allows a defendant to withdraw a plea of guilty after the court accepts the plea and

before sentence is imposed if “the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The Seventh Circuit has “frequently observed that a

defendant does not have an absolute right to withdraw a plea before sentencing, although the

court may allow him to do so if he has a fair and just reason for doing so.” United States v.

Chavers, 515 F.3d 722, 724 (7th Cir. 2008) (quotation marks, citations, and brackets omitted);

United States v. Hodges, 259 F.3d 655, 661 (7th Cir. 2001). “Because the defendant’s statements

at a plea colloquy are presumed to be true, the defendant bears a heavy burden of persuasion in

showing that such a fair and just reason exists.” Chavers, 515 F.3d at 724 (citing United States v.

Logan, 244 F.3d 553, 558 (7th Cir. 2001)). Requiring that the defendant have a “fair and just”

reason to withdraw an accepted plea is consistent with the requirement that, before any plea is

accepted, the defendant has sworn in open court that he actually committed the crimes, he has

stated that he is pleading guilty because he is in fact guilty, he has stated that he is pleading

guilty voluntarily, the court has advised him of his trial rights, the court has advised him of any

maximum possible penalty, the court has explained the terms of any plea agreement provision

waiving the right to appeal, and the court has found a factual basis for the plea. See Fed. R. Crim.

P. 11(b) (setting forth requirements for considering and accepting a guilty plea).

 Given the great care with which pleas are taken under . . . Rule 11, there is no

reason to view pleas so taken as merely tentative, subject to withdrawal before

sentence whenever the government cannot establish prejudice. Were withdrawal

automatic in every case where the defendant decided to alter his tactics and

present his theory of the case to the jury, the guilty plea would become a mere

gesture, a temporary and meaningless formality reversible at the defendant’s

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whim. In fact, however, a guilty plea is no such trifle, but a grave and solemn act,

which is accepted only with care and discernment. 

United States v. Hyde, 520 U.S. 670, 676–77 (1997) (quotation marks and brackets omitted)

(citing Advisory Committee explanation for adding “fair and just” language to Rule 32(e) (now

Rule 11(d)).

Because a defendant has neither a right to enter into a plea agreement, United States v.

Hall, 212 F.3d 1016, 1022 (7th Cir. 2000), nor a right to enter a conditional plea, United States v.

Fisher, 772 F.2d 371, 374 (7th Cir. 1985),4 the Government’s refusal to offer a requested term in

a plea agreement cannot—standing alone—serve as a “fair and just reason” for relief. 

ANALYSIS

At the outset, the Court notes that a “fair and just reason” for the withdrawal of a guilty

plea is that the plea was involuntarily. United States v. Nash, 29 F.3d 1195, 1198 (7th Cir. 1994);

see also United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995) (“A guilty plea is

voluntary when it is not induced by threats or misrepresentations and the defendant is made

aware of the direct consequences of the plea.”) (quotation marks and citation omitted). However,

4

See Fisher, 772 F.2d at 374: 

The Federal Rules, by their terms, create no enforceable “right” to enter a conditional plea.

[Federal Rule of Criminal Procedure] 11(a)(2) explicitly grants both the court and

government veto power over entry of such a plea, and its legislative history indicates that

it was adopted primarily for the benefit of courts and prosecutors, not defendants. See

Notes of Advisory Committee on Rules of Criminal Procedure with respect to 1983

Amendment adding Rule 11(a)(2). By definition, the rule’s permissive nature means that

defendants have no “right” to exercise its special form of pleading. Cf. United States v.

Fels, 599 F.2d 142, 148 n. 4 (7th Cir. 1979) (Rule 11(b), which allows a defendant to

plead nolo contendere, but only with consent of court, also does not create a “right” to

enter a nolo contendere plea). Neither does the Constitution grant such a right. 

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in his Motion to Withdraw Guilty Plea, the Defendant does not point to any deficiency in the

Court’s Change of Plea Hearing on November 6, 2014. That is, he does not allege that the Court

failed to follow Rule 11 of the Federal Rules of Criminal. Nor does he submit that any of his

comments during the hearing suggested that his plea was anything other than knowing and

voluntary. 

A review of the Defendant’s Change of Plea Hearing indicates the same. Prior to

accepting the Defendant’s plea, the Court took the Defendant’s oath and made a detailed inquiry

into his competence to plead, the voluntariness of his plea, and his understanding regarding

specific terms of the Plea Agreement. The Court found that the Defendant was fully competent

and capable of entering an informed plea, that the Defendant was aware of the charges and the

consequences of the plea, and that the plea of guilty was knowing and voluntary, and supported

by an independent basis in fact containing each of the essential elements of the offense. The

Court specifically inquired regarding the Defendant’s waiver of his right to appeal his conviction

and sentence, and any restitution order imposed or the manner in which his conviction, sentence,

or restitution order was determined or imposed. During the hearing colloquy, the Defendant

affirmed his understanding of all terms contained within the Plea Agreement.

Moreover, the Defendant does not claim innocence, see United States v. Mays, 593 F.3d

603, 607 (7th Cir. 2010) (recognizing actual and legal innocence as legitimate bases for the

withdrawal of a guilty plea), nor does he claim that the Government breached the Plea

Agreement, see United States v. Schilling, 142 F.3d 388, 398 (7th Cir. 1998). The Defendant’s

sole contention is that the Government, by denying his request for a conditional guilty plea,

denied him equal protection, thereby creating a “fair and just reason” for the withdrawal of his

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guilty plea.5

 

A. Equal Protection

The Equal Protection Clause reaches “state action that treats a person poorly because of

the person’s race or other suspect classification, such as sex, national origin, religion, political

affiliation, among others, or because the person has exercised a ‘fundamental right,’ or because

the person is a member of a group that is the target of irrational government discrimination.”

Abcarian v. McDonald, 617 F.3d 931, 938 (7th Cir. 2010) (citing Engquist v. Or. Dep’t of

Agric., 553 U.S. 591 (2008), Plyler v. Doe, 457 U.S. 202, 216–17 (1982), and Srail v. Vill. of

Lisle, 588 F.3d 940, 943 (7th Cir. 2009)). In the absence of a deprivation of a fundamental right

or the existence of a suspect class, the proper standard is rational basis, which requires plaintiffs

to show that (1) the state actor intentionally treated the plaintiffs differently from others similarly

situated, (2) this different treatment was caused by the plaintiffs’ membership in a class to which

they belong, and (3) this different treatment was not rationally related to a legitimate state

interest. Srail, 588 F.3d at 943. The Supreme Court has also recognized the prospect of a socalled “class-of-one” equal protection claim, whereby a litigant need not allege discrimination

based on a suspect classification (i.e., the second factor), but must show that he or she was

singled out arbitrarily, without rational basis, for unfair treatment. Abcarian, 617 F.3d at 938

(citing Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000).

5

Although the Defendant references an alleged violation of “due process” (Def.’s Br. 1), he only

articulates a claim for equal protection. The Court will therefore construe the Defendant’s challenge as

one based solely on equal protection grounds. 

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1. Similarly Situated 

First, to establish a constitutional deprivation based on the class-of-one equal protection

theory—which the Defendant attempts to do here—the Defendant must show that the

Government treated him differently from others similarly situated. “To be considered ‘similarly

situated,’ the class-of-one challenger and his comparators must be ‘prima facie identical in all

relevant respects or directly comparable . . . in all material respects.’” United States v. Moore,

543 F.3d 891, 896 (7th Cir. 2008) (quoting Racine Charter One, Inc. v. Racine Unified Sch.

Dist., 424 F.3d 677, 680 (7th Cir. 2005)). Although this is not a “precise formula,” similarly

situated individuals “must be very similar indeed.” McDonald v. Vill. of Winnetka, 371 F.3d 992,

1002 (7th Cir. 2004). 

In his brief, the Defendant relies on a comparison with 12 federal defendants in the

Northern District of Indiana, all of whom (1) filed a motion to suppress raising challenges under

the Fourth or Fifth Amendment; and (2) entered into a conditional plea agreement with the

Government following the trial court’s denial of the motion to suppress.6 The Defendant

contends that “a docket review of each” of the cases shows that he is “legally and factually

similarly situated to those comparators.” (Def.’s Br. 7.)

Although the Defendants points to general commonalities between himself and the 12

federal defendants—namely, prosecution in the Northern District of Indiana and the filing of a

6

The Defendant cites the following cases: United States v. Schlatter (1:09-cr-91); United States v.

McBride (1:09-cr-21); United States v. White (1:03-cr-26); United States v. Billian (1:08-cr-31); United

States v. Patterson (1:13-cr-65); United States v. Scott (1:09-cr-98); United States v. Sabo (1:10-cr-21);

United States v. Bullock (1:09-cr-10); United States v. Jackson (1:08-cr-38); United States v. Fields

(1:08-cr-11); United States v. Govan (1:08-cr-12); United States v. Hayden (1:07-cr-68). Although the

Defendant also cites United States v. Dedeaux (1:12-cr-40), a review of the public record shows that this

case did not involve a conditional plea agreement. 

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motion to suppress that was later denied by the trial court—the Defendant has failed to show that

his comparators are “prima facie identical in all relevant respects or directly comparable . . . in

all material respects.” Moore, 543 F.3d at 896 (emphasis added). Notably, 11 out of the 12

federal defendants entered into a conditional plea agreement prior to the Government’s

implementation of a new appellate approval procedure in August 2012. This new procedure, as

described in the parties’ Stipulation of Facts, requires all conditional plea agreements to be

approved by the Appellate Chief in the U.S. Attorney’s Office for the Northern District of

Indiana. Thus, with the exception of one case, the Defendant’s comparators were subject to a

separate decision-making procedure, and presumably, different decision-makers. See Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (observing that when “‘different

decision-makers are involved, two decisions are rarely similarly situated in all relevant

respects’” (quoting Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 910 (8th Cir. 1999));

see also id. (finding that, in the employment context, “[d]ifferent employment decisions,

concerning different employees, made by different supervisors, are seldom sufficiently

comparable to establish a prima facie case of discrimination for the simple reason that different

supervisors may exercise their discretion differently.”); Purze v. Vill. of Winthrop Harbor, 286

F.3d 452, 455 (7th Cir. 2002) (finding that class-of-one plaintiffs were not similarly situated to

comparators, in part, because their zoning-related requests were acted upon by different

decision-makers). 

Moreover, the Government’s negotiation of terms within a plea agreement falls squarely

within the realm of prosecutorial discretion, see United States v. Sakellarian, 649 F.3d 634, 640

(7th Cir. 2011), and as such, typically involves a host of relevant (and often individualized)

10
considerations. Absent a more detailed comparison, the Court lacks a sufficient basis to

determine whether the Defendant and his comparators are “directly comparable . . . in all

material respects.” Moore, 543 F.3d at 896 (noting that “the class-of-one theory is better suited

to those contexts involving ‘a clear standard against which departures, even for a single

[individual], could be readily assessed.”) (citing Engquist, 553 U.S. at 602). Thus, based on the

record before the Court, the Defendant has not satisfied the first prong of the class-of-one

analysis. 

2. Rational Basis

But even assuming the existence of differential treatment, the Defendant confronts a

more intractable hurdle at the second prong of the class-of-one analysis. Under the rational basis

test, “the varying treatment of different groups or persons [must be] so unrelated to the

achievement of any combination of legitimate purposes that [the court] can only conclude that

the [government’s] actions were irrational.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000)

(quotation marks and citation omitted). However, under a line of cases in the Seventh Circuit, a

class-of-one equal protection claim “based solely upon purported irrationality, rather than

illegitimate animus,” is automatically foreclosed. Moore, 543 F.3d at 898 (citing Racine, 424

F.3d at 684 (collecting Seventh Circuit cases requiring proof of illegitimate animus for a

successful class-of-one challenge)). This line of cases “reflects, at least in part, a concern that

allowing a remedy under the equal protection clause for merely ‘irrational and wholly arbitrary

adverse treatment by government,’ without proof of something more (such as illegitimate

animus), would open ‘[b]reathtaking vistas of liability’.” Id. (quoting Tuffendsam v. Dearborn

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Cnty. Bd. of Health, 385 F.3d 1124, 1127 (7th Cir. 2004)). On the other hand, a second line of

cases permits a class-of-one equal protection claim “upon proof that the differential treatment

was either simply irrational or motivated by illegitimate animus.” Id. (citing Racine, 424 F.3d at

684 (collecting Seventh Circuit cases holding “that a class of one equal protection claim is

established where the defendant has intentionally treated the plaintiff differently than others

similarly situated either without any rational basis for doing so or out of some totally illegitimate

animus.”)). 

Under the first line of cases, the Defendant’s class-of-one claim is automatically

foreclosed because he does not assert that the Government’s refusal to grant him a conditional

plea was motivated by ill will or animus. See Def.’s Br. 8 (“[The Defendant] does not argue that

the [G]overnment’s decision to deny his request for a conditional plea was motivated by ill will

or animus.”) Nevertheless, even if the second line of cases applies, the Seventh Circuit has

determined that “a class-of-one equal protection challenge, at least where premised solely on

arbitrariness/irrationality” cannot be successful “merely on the ground that [the exercise of

prosecutorial discretion] is irrational or arbitrary,” but only upon a showing of “invidious

discrimination.” Moore, 543 F.3d at 900–01 (noting that class-of-one equal protection challenges

are “a ‘poor fit’ in the prosecutorial discretion context.”) (quoting Engquist, 553 U.S. at 605);

United States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992) (“Arbitrariness—that is, unjustified

disparities in the treatment of similarly situated persons—is not among the grounds on which to

contest an exercise of prosecutorial discretion.”); see also Sakellarian, 649 F.3d at 640 (“Judicial

review of decisions involving plea agreements is quite limited because of the government’s

significant discretion over matters constitutionally assigned to the executive branch.” (citing

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Wayte v. United States, 470 U.S. 598, 607 (1985) (“[T]he Government retains ‘broad discretion’

as to whom to prosecute.” (quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11 (1982))).

Thus, by challenging the Government’s exercise of prosecutorial discretion—i.e., its decision to

deny the Defendant’s request for a conditional guilty plea—solely on the grounds of

arbitrariness/irrationality, the Defendant cannot establish an unconstitutional motive based on a

class-of-one theory.

Again, the Court reiterates that the Defendant’s statements at his November 6, 2014,

Change of Plea Hearing—which offer no indication or suggestion that they were made

unknowingly or involuntarily—are presumed to be true, and therefore, the Defendant “bears a

heavy burden of persuasion in showing that . . . a fair and just reason exists” to justify the

withdrawal of his guilty plea. Chavers, 515 F.3d at 724. Because the Defendant, through his

Motion to Withdraw Guilty Plea and briefing in support, has not shown a constitutional

deprivation based on equal protection grounds, or presented any other fair and just reason for the

withdrawal of his guilty plea, his Motion is denied. 

CONCLUSION

For the foregoing reasons, the Defendant’s Motion to Withdraw Guilty Plea [ECF No.

49] is DENIED. As noted above, the Court anticipates addressing the Defendant’s pro se

submissions [ECF Nos. 67–68] in a separate order. 

SO ORDERED on May 10, 2016.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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