IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

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vs. CRIMINAL NO. 14-00304-CG

JAQUAN ARKEEM HALE,

Defendant.

ORDER

This matter is before the court on defendant Jaquan Arkeem Hale’s

Motion to Set Aside Guilty Plea as to Count Three (Doc. 40) and the United 

States’ response in opposition (Doc. 48). 

In open court on March 2, 2015 (Doc. 34), pursuant to a Rule 11 plea 

agreement (Doc. 33), defendant pled guilty to Counts 2 & 3 of the Indictment, 

charging the offenses of possession with intent to distribute marijuana in 

violation of Title 21, U.S.C., § 841(a)(1) as charged in Count 2; and using and 

carrying a firearm in furtherance of a drug trafficking felony in violation of 

Title 18, U.S.C., § 924(c)(1)(A) as charged in Count 3. Sentencing was set for 

July 1, 2015 (Doc. 34). On June 11, 2015, retained counsel filed a notice of 

appearance for the defendant (Dc. 36), and the following day, Hale’s courtappointed counsel withdrew from representation because of retained 

counsel’s appearance (Doc. 37). On June 22, 2015, defendant moved to 

withdraw his guilty plea as to Count Three, claiming he “did not intent to 

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plead guilty to Count Three. . . . The firearm recovered in the residence was 

owned by an unindicted co-defendant (sic) and the Defendant was not aware 

that the firearm was present.” (Doc. 40).

ANALYSIS

A. Setting Aside Guilty Plea

After the district court has accepted a plea and before sentencing, a 

defendant may withdraw a guilty plea if “the defendant can show a fair and 

just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In 

determining whether the defendant has met the burden to show a “fair and 

just reason,” a district court “may consider the totality of the circumstances 

surrounding the plea.” United States v. Buckles, 843 F.2d 469, 471–72 (11th 

Cir. 1988) (citations omitted). For this inquiry, the court may consider “(1) 

whether close assistance of counsel was available; (2) whether the plea was 

knowing and voluntary; (3) whether judicial resources would be conserved; 

and (4) whether the government would be prejudiced if the defendant were 

allowed to withdraw [his] plea.” Id. at 472 (citations omitted). “The good faith, 

credibility and weight of a defendant’s assertions in support of a motion [to 

withdraw a guilty plea] are issues for the trial court to decide.” Id. (citation

omitted). Additionally, a guilty plea may not be knowing and voluntary if the 

accused does not understand the nature of the constitutional protections he is 

waiving or has such an incomplete understanding of the charges that his plea 

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cannot be construed as an intelligent admission of guilt. Gaddy v. Linahan, 

780 F.2d 935, 943 (11th Cir. 1986) (citations and quotations omitted).

At the time Defendant entered his guilty plea, the following colloquy 

occurred while the defendant was under oath:

THE COURT: All right. Do you understand that you are

now under oath and that if you answer any of my questions

falsely, those answers may later be used against you in a

separate prosecution for perjury or for making a false

statement?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. What is your full name?

THE DEFENDANT: Jaquan Arkeem Hale.

THE COURT: How old are you?

THE DEFENDANT: 24.

THE COURT: Where were you born?

THE DEFENDANT: Mobile, Alabama.

THE COURT: And how far did you go in school?

THE DEFENDANT: Ninth grade.

THE COURT: Have you been treated recently for any

mental illness or addiction to any sort of drug?

THE DEFENDANT: I recently was incarcerated and the

took the drug class.

THE COURT: Have you had any treatment for drug

addiction?

THE DEFENDANT: Yes, ma'am.

THE COURT: Where was that?

THE DEFENDANT: It was Easterling Correctional

Facility.

THE COURT: Okay. So you went through a drug program

there; is that correct?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. And are you currently under

the influence of any drug, medication, or alcoholic beverage?

THE DEFENDANT: No, ma'am.

THE COURT: Have you received a copy of the

indictment, the written charges in your case?

THE DEFENDANT: Yes, ma'am.

THE COURT: And have you discussed those charges fully

and the case in general with Mr. Tiemann?

THE DEFENDANT: Yes, ma'am.

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THE COURT: Do you understand the charges pending

against you?

THE DEFENDANT: Yes, ma'am.

THE COURT: Are you fully satisfied with the counsel,

representation, and advice given to you in this case by your

attorney?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. Now, just a minute ago I was

given this plea agreement that I saw you sign at the back table

there. Did you have the opportunity to read and discuss this

plea agreement with Mr. Tiemann before you signed it?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you have any agreements with the

government concerning your case that are not written down in

your plea agreement?

THE DEFENDANT: No, ma'am.

THE COURT: Do you understand the terms of your plea

agreement?

THE DEFENDANT: Yes, ma'am.

THE COURT: Has anyone made any promise or assurance

to you of any kind that is not in the plea agreement in order

to persuade you to accept the plea agreement?

THE DEFENDANT: No, ma'am.

THE COURT: Has anybody threatened you to get you to

accept it?

THE DEFENDANT: No, ma'am.

THE COURT: Do you understand that certain of the

terms of the plea agreement are merely recommendations to the

Court and that I can reject those recommendations without

permitting you to withdraw your plea of guilty and impose a

sentence that's more severe than you might anticipate?

THE DEFENDANT: Yes, ma'am.

THE COURT: Has anyone attempted in any way to force

you to plead guilty?

THE DEFENDANT: No, ma'am.

THE COURT: Or threatened you to get you to plead

guilty?

THE DEFENDANT: No, ma'am.

THE COURT: Has anyone made any promises or assurances

of any kind to get you to plead guilty other than what is in

the plea agreement?

THE DEFENDANT: No, ma'am.

THE COURT: Are you pleading guilty of your own free

will because you are guilty?

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THE DEFENDANT: Yes, ma'am.

THE COURT: Do you understand that the offense or

offenses to which you are pleading guilty are felony offenses

and that if your plea is accepted you will be adjudged guilty of

those offenses and that such adjudication may deprive you of

valuable civil rights such as the right to vote, the right to

hold public office, the right to serve on a jury, and the right

to possess any kind of firearm?

THE DEFENDANT: Yes, ma'am.

THE COURT: Now, the maximum penalty the Court could

impose upon conviction of count two, which is the possession of

marijuana count, is, I believe, up to five years' imprisonment,

a fine not to exceed $250,000, a term of supervised release of

up to two years which would follow any term of imprisonment,

and if you violated the conditions of supervised release you

could be imprisoned for that entire term, and a mandatory

special assessment of $100.

As to count three, which is the possession of the

firearm or in connection with the drug dealing, it would be a

minimum mandatory five years consecutive to whatever you get 

on count two, a fine not to exceed $250,000, again a term of

supervised release of five years which would follow any term of

imprisonment, if you violated the conditions of supervised

release you could be imprisoned for that entire term, and a

mandatory special assessment of $100. Do you understand those

possible consequences of your guilty plea?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. Ms. Bedwell, let me ask you,

there are no enhancements that have been filed in this case?

MS. BEDWELL: That's correct, Your Honor.

THE COURT: Okay. Now, the United States Sentencing

Commission has issued sentencing guidelines for judges to

consider when determining the sentence in a criminal

case. Have you and Mr. Tiemann talked about how the 

guidelines might apply to your case?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you understand that the Court will not

be able to determine the guideline range until after the

probation office has prepared a presentence report and you and

the government have had the opportunity to challenge the

reported facts and the application of the guidelines

recommended by the probation office and that the sentence

ultimately imposed may be different from any estimate your

attorney or anybody else might have given you in this case?

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THE DEFENDANT: Yes, ma'am.

THE COURT: Do you also understand that after the

initial advisory guideline range has been determined, the Court

has the authority in some circumstances to depart either

upwards or downwards from that range and will also examine

other statutory sentencing factors that may result in a

sentence that is either greater or lesser than that called for

by the guidelines?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you understand that under some

circumstances you or the government may have the right to

appeal any sentence that I impose? However, your plea

agreement contains a limited waiver of your right to appeal and

in your case you have retained the right to appeal only if

sentence is imposed in excess of the statutory maximum, if

sentence is imposed that constitutes an upward departure or

variance from the sentencing guideline range, or if you have a

claim of ineffective assistance of counsel. Do you understand

that you have waived your right to appeal in all but those

three circumstances outlined in your plea agreement?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you also understand that in your plea

agreement you have waived your right to file a 2255 petition,

or a collateral attack on your conviction or sentence after it

becomes final, unless you have a claim of ineffective

assistance of counsel?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you understand that you have a right to

plead not guilty to any offense charged against you and to

persist in that plea and that you would then have the right to

a trial by jury, at that trial you would be presumed to be

innocent and the government would have to prove your guilt

beyond a reasonable doubt, you would have the right to the

assistance of counsel for your defense, the right to see and

hear all of the witnesses and have them cross-examined in your

defense, the right on your own part to decline to testify

unless you voluntarily elected to do so in your own defense,

and the right to the issuance of subpoenas to compel the

attendance of witnesses to testify in your defense?

THE DEFENDANT: Yes, ma'am.

THE COURT: And do you understand that if you went to

trial and decided not to testify or to put on any evidence at

all, those facts could not be used against you?

THE DEFENDANT: Yes, ma'am.

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THE COURT: Do you further understand that by entering

a plea of guilty, there will be no trial and you will have

waived or given up your right to a trial as well as those other

rights associated with a trial that I've just described?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. You are pleading guilty to two

counts. In order to convict you of count two, the government

would have to prove that you knowingly possessed marijuana 

and that you possessed that drug with the intent to distribute it.

As to count three, the government would have to prove

that you committed the drug-trafficking crime charged in count

two, that you knowingly used, carried, or possessed a firearm

and that the use or carrying or possession of the firearm was

in relation to or in furtherance of that drug-trafficking

offense. Do you understand what the government would have to

prove in order to convict you of those counts?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. Now, a minute ago I asked you

if you had signed the plea agreement – well, I didn’t ask you

that, but I saw you sign the plea agreement and the factual

resume. And I want to make sure that you understand that by

signing the factual resume you are agreeing that the 

government could prove the facts set forth in that document in 

support of your guilty plea. Do you understand and agree to 

that?

THE DEFENDANT: Yes, ma'am.

THE COURT: All right. I have read that. So I'll now

ask you how do you plead to the charges, guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: All right. It is the finding of the Court

in the case of Jaquan Arkeem Hale that the defendant is fully

competent and capable of entering an informed plea, that he is

aware of the nature of the charges and the consequences of the

plea, and that the plea of guilty is a knowing and voluntary

plea supported by an independent basis in fact containing each

of the essential elements of the offense. The plea is therefore 

accepted and the defendant is now adjudged guilty Of

those of those offenses.

(Doc. 49, pp. 3 - 11).

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As noted above, the defendant stated under oath that he had read and 

discussed the plea agreement with his lawyer before he signed it. The plea 

agreement provided, in part:

2. The defendant ... pleads guilty to Counts 2 and 3 of the 

Indictment, charging violations of Title 21, United States Code, 

Section 841(a)(1), possession with intent to distribute 

marijuana, and Title 18, United States Code, 924(c)(1)(A), using 

and carrying a firearm in furtherance of a drug trafficking

felony.

3. The defendant understands that the statements he 

makes under oath in the plea of guilty must be completely 

truthful and that he can be prosecuted for making false 

statements or perjury, or receive a perjury enhancement at 

sentencing, for any false statements he makes intentionally in 

this plea of guilty.

4. The defendant expects the Court to rely upon his 

statements here and his response to any questions that he may 

be asked during the guilty plea hearing.

 . . . .

6. The defendant has had the benefit of legal counsel in 

negotiating this Plea Agreement. He has discussed the facts of 

the case with his attorney, and his attorney has explained to the 

defendant the essential legal elements of the criminal charge 

which has been brought against him. The defendant’s attorney 

has also explained to the defendant his understanding of the 

United States’ evidence and the law as it relates to the facts of 

his offense.

7. The defendant understands that the United States has

the burden of proving each of the legal elements of the criminal 

charge beyond a reasonable doubt. The defendant and his 

counsel have discussed possible defenses to the charge. The 

defendant believes that his attorney has represented him 

faithfully, skillfully and diligently, and he is completely satisfied 

with the legal advice of his attorney.

 . . . . 

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9. This plea of guilty is freely and voluntarily made and 

is not the result of force, threats, promises, or representations, 

apart from those representations set forth in this Plea 

Agreement. . . . The defendant is pleading guilty because he is 

guilty.

(Doc. 33. pp. 1 – 3).

Defendant has now moved to withdraw his guilty plea as to Count 

Three, arguing that he did not intend to plead guilty to Count Three because 

the firearm in question was owned by “an unindicted co-defendant” and the 

Defendant was not aware that the firearm was in the residence. Taking into 

account questions of good faith and credibility, the Court concludes that the 

defendant has offered no legitimate reason for withdrawing his guilty plea.

As to the first Buckles factor regarding close assistance of counsel, Defendant

told the Court under oath that he had fully discussed the charges and the 

case in general with his lawyer, and that he understood the charges pending 

against him. In addition, he stated that he had discussed and read the plea 

agreement with his lawyer before he signed it, and that he understood its 

terms. He therefore had close assistance of counsel in making his 

determination to enter a guilty plea to Count Three.

As to the second Buckles factor, Defendant has failed to show that his

plea was not knowing or voluntary. Defendant had able assistance of 

appointed counsel throughout the process, and he knowingly and voluntarily 

pled guilty to possession of a firearm in furtherance of a drug trafficking 

offense, as charged in Count Three. He was advised by the Court of the 

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maximum penalty the Court could impose on conviction of Count Three, 

which the Court specifically described as “possession of the firearm ... in 

connection with the drug dealing”. The Court also informed him of what the 

government must prove in order to convict him of Count Three:

As to count three, the government would have to prove 

that you committed the drug-trafficking crime charged in count 

two, that you knowingly used, carried or possessed a firearm 

and that the use or carrying or possession of the firearm was in 

relation to or in furtherance of that drug-trafficking offense.

(Doc. 49, p.10). Additionally, the plea agreement, which Defendant testified 

he read and discussed with his counsel, specified that the guilty plea would 

be to Count Two and Count Three, describing Count Three as a violation of 

“Title 18, United States Code, 924(c)(1)(A), using and carrying a firearm in 

furtherance of a drug trafficking felony.” (Doc. 33, p.1). If, as Defendant now 

claims, he had no knowledge of the presence of the firearm, this alleged fact 

was surely known to him when discussing the case with his lawyer, when 

going over the Plea Agreement, and when entering the plea to possession of a 

firearm in furtherance of a drug trafficking offense. The Court finds that the 

defendant’s claim that he did not know he was entering a plea to Count Three 

is incredible.

The third and fourth Buckles factors also do not weigh in his favor, as

allowing withdrawal of the guilty plea under these circumstances would 

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waste judicial resources and could prejudice the United States.1 The Court is 

mindful of the gravity associated with pleading guilty, but based on the 

totality of the circumstances there is not a fair and just reason for 

withdrawing the guilty plea. The Court therefore affirms its conclusions at 

the guilty plea hearing. 

CONCLUSION

Defendant has not articulated a fair and just reason for withdrawing 

his guilty plea. The undersigned accepted his guilty plea on March 2, 2015, 

following a Rule 11 inquiry in open court. Defendant entered the guilty plea

knowingly, voluntarily, and with close assistance of counsel. For all of the 

foregoing reasons, defendant’s Motion to Set Aside Guilty Plea as to Count 

Three (Doc. 40) is DENIED.

DONE and ORDERED this 13th day of August, 2014

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

 1 Where, as here, defendant fails to satisfy the first two factors of the Buckles analysis, a 

court need not “give particular attention” to the other factors. See United States v. 

Gonzalez–Mercado, 808 F.2d 796, 801 (11th Cir. 1987).

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