UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:16-CR-19-TLS

)

LATWON FORD )

OPINION AND ORDER

The Government charged the Defendant, Latwon Ford, with two Counts of Hobbs Act 

robbery, in violation of 18 U.S.C. §§ 1951(a) and (b) (Counts 1 and 2) and a Count of 

brandishing a firearm during a robbery, in violation of 18 U.S.C. § 924(c) (Count 3). Count 2 

serves as the underlying offense for Count 3. The Defendant entered into a Plea Agreement [ECF 

No. 27] on January 10, 2017, which the Court accepted on February 6, 2017 [ECF No. 34]. The 

probation officer assigned to this case drafted a Pre-Sentence Investigation Report (Draft PSR, 

ECF No. 39) on March 29, 2017. On April 13, 2017, the Defendant filed an Objection [ECF No. 

43] to the PSR, taking the position that a sentencing enhancement was improperly applied for 

brandishing a firearm. It is the Defendant’s position that he only used or carried, not brandished, 

a firearm during the robbery at issue in Count 2. No changes were made to the PSR regarding the 

sentencing enhancements in response to this objection. Based on intervening Seventh Circuit 

authority regarding binding admissions in plea agreements, the Defendant withdrew his 

Objection on August 14, 2017 [ECF No. 59]. A Revised Final PSR [ECF No. 67] was entered on 

October 26, 2017, and the Third Addendum [ECF No. 68] to the PSR reflects the withdrawal of 

the Defendant’s Objection.

On December 12, 2017, the Defendant filed a Motion for Hearing [ECF No. 77], 

requesting an evidentiary hearing to determine whether he in fact brandished a firearm during the 
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course of the robbery, which the Court construed as a renewal of his Objection. (See ECF No. 

78.) The Government responded [ECF No. 79] on December 14, 2017, objecting to the 

Defendant’s Motion, and the Defendant filed his Reply [ECF No. 82] on January 26, 2018. This 

matter is now fully briefed and ripe for review.

ANALYSIS

The Defendant argues that he did not knowingly plead to brandishing a firearm and 

contends that he pled only to carrying a firearm during the commission of the robbery charged in 

Count 2. If the Court finds that he did knowingly plead to brandishing a firearm, the Defendant 

alternatively requests to withdraw his plea agreement.

A. Brandishing Charge

Count 3 of the Indictment charges the Defendant with “knowingly brandish[ing], 

carr[ying], and us[ing] a firearm during and in relation to a crime of violence for which he may 

be prosecuted in a court of the United States, that being obstructing and affecting commerce by 

robbery in violation of 18 U.S.C. § 1951, as alleged in Count 2; All in violation of 18 U.S.C. 

§ 924(c).” (See Indict. 3, ECF No. 1.) In his Plea Agreement, the Defendant agreed in relevant 

part to “plead guilty to Counts 1, 2, and 3 of the Indictment charging me with . . . brandishing a 

firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 

3), because I am, in fact, guilty of [this] offense[].” (Plea Agrmnt. ¶ 8(a), ECF No. 27.)

The Defendant makes two arguments in support of his claim that he did not knowingly 

plead to the brandishing charge. First, the Defendant argues that the Indictment and the Plea 

Agreement reference § 924(c) generally and do not indicate that he was being specifically 
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charged with brandishing under § 924(c)(1)(A)(ii). The Defendant further argues that he could 

not reasonably surmise that he was being charged specifically with brandishing because the 

language used in the Indictment and the Plea Agreement can be found in multiple places in 

§ 924(c). Second, the Defendant argues that during his change of plea hearing, he did not admit 

to brandishing, and when he agreed to the Government’s recitation of the facts and evidence, he 

misunderstood the proceeding, believing that the Government’s recitation was what it thought it 

would offer at trial, not what facts would be conclusively admitted as true.

1. Indictment and Plea Agreement

The Court will first address the argument that the Indictment and Plea Agreement did not 

properly specify under what section of § 924(c) the Defendant was being charged. An indictment 

must “adequately apprise a defendant of the charge against him so that he can prepare his 

defense.” United States v. Hinkle, 637 F.3d 1154, 1157 (7th Cir. 1981). Section 924(c) provides 

in relevant part:

[A]ny person who, during and in relation to any crime of violence or drug 

trafficking crime . . . for which the person may be prosecuted in a court of the 

United States, uses or carries a firearm, or who, in furtherance of any such crime, 

possesses a firearm, shall, in addition to the punishment provided for such crime of 

violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of 

not less that 7 years[.]

§ 924(c)(1)(A)(ii).

The Court does not agree with the Defendant that the language used in the Indictment and 

Plea Agreement comes from multiple sections of the statute so as to make the charge and the 

agreement ambiguous. First, the Indictment and the Plea Agreement specifically reference 

“brandishing.” The term “brandished” does not appear anywhere else in § 924(c) aside from its 
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definition in § 924(c)(4). Further, the Plea Agreement specifically advised the Defendant that the 

penalty for Count 3 was “imprisonment of not less than 7 years . . . .” (Plea Agreement. ¶ 8(b).) 

The only enhancement under § 924(c) that carries a minimum term of imprisonment of 7 years is 

for brandishing, pursuant to § 924(c)(1)(A)(ii).

Moreover, the Seventh Circuit has found that an indictment does not need to indicate 

under which subsection a defendant is charged so long as it “(1) states all the elements of the 

offense charged, (2) informs the defendant of the nature of the charge, enabling the defendant to 

prepare a defense, and (3) enables the defendant to plead the judgment as a bar to later 

prosecution of the same offense.” United States v. Allender, 62 F.3d 909, 914 (7th Cir. 1995) 

(finding indictment “clearly conform[ed] to the minimal constitutional standards” when it “set 

forth the charges against [the defendant] using the language of the statute”). In Kanton v. United 

States, the defendant argued that he was charged only with a violation of 18 U.S.C. § 2113, but 

not with a violation of subsection (d). 345 F.2d 427 (7th Cir. 1985). However, the Seventh 

Circuit noted that “section 2113 defines and declares one crime, but, in fixing punishments, it 

outlines a sliding scale which permits the court to fix the punishment to fit the crime.” Id. at 428. 

Citing its decision in Colquette v. United States, 216 F.2d 591 (7th Cir. 1954), the Seventh 

Circuit opined that rendering an indictment void merely because the subsection was omitted 

under these circumstances “would require an unjustifiable surrender to insistence on form to the 

exclusion of substance.” Id. at 429. Likewise, § 924(c) defines and declares one crime, but 

outlines a sliding scale which permits the Court to fix the punishment to fit the crime, and 

voiding the Indictment based on the omission of a specific reference to a subsection of the statute 

would elevate form over substance. Thus, the Court finds that the Indictment and the Plea 

Agreement properly set forth the charge of brandishing.
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2. Change of Plea Hearing

The Court now turns to the Defendant’s argument that during his change of plea hearing, 

he did not actually admit to the charge of brandishing. When asked to describe his conduct in 

connection with the charges that made him believe he was guilty, the Defendant stated:

On January the 20th, 2016, I robbed the Dollar General store in Leo, Indiana. I took 

money from a Dollar General employee against her will. When I robbed the Dollar 

General store, I was armed with a firearm. I had the firearm with me when I went 

in the store.

Thus, the Defendant argues, he admitted only to having a firearm with him during the robbery 

and did not admit to brandishing.

“It is not necessary, however, that the defendant state in his own words the factual basis.” 

United States v. Lovelace, 683 F.2d 248, 251 (7th Cir. 1982) (citing United States v. Madrigal, 

518 F.2d 166, 167 (7th Cir. 1975)). And, the Magistrate Judge in this case went to great lengths 

to ensure that the Defendant understood the charges to which he was pleading guilty, including 

the charge of brandishing, advising him of “the nature of the charge, the statutory maximum 

penalties, the trial rights he was giving up, the role of the sentencing guidelines, and the 

consequences of the appeal waiver.” United States v. Corn, 669 F. App’x 300, 301 (7th Cir. 

2016). The Government also provided a detailed recitation of the facts, including that the 

Defendant brandished a handgun, to which the Defendant agreed. See United States v. Blalock, 

321 F.3d 686, 689 (7th Cir. 2003) (“[W]e believe that the court’s explication of the charge . . . 

coupled with the prosecution’s recitation of the factual basis for the charge . . . were sufficient to 

ensure that [the defendant] knew and understood the nature of the offense to which he was 

pleading guilty.”); United States v. Dabney, 414 F. App’x 869, 872 (7th Cir. 2011) (“At his plea 

hearing, however, [the defendant] agreed with the government’s contention . . . and 

acknowledged that the government would be able to produce evidence of that at trial. These 
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admissions are sufficient to establish a factual basis for the [charge].”); United States v. 

LeDonne, 21 F.3d 1418, 1424 (7th Cir. 1994) (“[A] sufficient factual basis can be found even 

when the court engages in the most rudimentary questioning of the defendant if the indictment 

and statement of the prosecution’s evidence are sufficiently specific to make clear to the 

defendant exactly what is being admitted.”) (citation omitted). Thus, the Court finds that the 

Defendant admitted to brandishing a weapon during the commission of the robbery charged in 

Count 2.

B. Withdrawal of Guilty Plea

At the end of his reply brief, the Defendant alternatively requests that the Court permit 

him to withdraw his guilty plea. However, the Defendant has not filed a motion to withdraw his 

plea, and this issue has not been fully briefed by the parties. Given the Court’s ruling on the 

Defendant’s Objection to the PSR, should the Defendant still wish to withdraw his plea, he may 

file an appropriate motion with the Court, and the Court will consider his request after it is fully 

briefed.

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion for Hearing

[ECF No. 77].

SO ORDERED on February 9, 2018.

s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT