UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 19-203 (CKK) EDWARD MAGRUDER, Defendant.

MEMORANDUM OPINION (February 12, 2021) In this criminal action, Defendant Edward Magruder pled guilty to unlawful possession

with intent to distribute one kilogram or more of heroin, in violation of

(a)(1)

and (b)(1)(A). Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure,

Defendant Magruder and the Government agreed that a sentence between 144 months and 180

months of incarceration, followed by five years of supervised release, was an appropriate

sentence. Two days before his scheduled sentencing hearing, Defendant Magruder filed his

Second Motion to Withdraw Guilty Plea, ECF No. 46. Defendant Magruder argues that he

should be permitted to withdraw his guilty plea because he learned after the plea hearing that no

return had been filed for one of two warrants authorizing collection of cell phone data. He also

argues that the warrant authorized the collection of content from his cell phone that was not

supported by probable cause. The Government opposes withdrawal of the guilty plea.

Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a

1 The Court’s consideration has focused on the following documents: • Defendant’s Second Motion to Withdraw Guilty Plea (“Def.’s Mot.”), ECF No. 46; • Government’s Opposition to Defendant’s Second Motion to Withdraw Guilty Plea (“Gov.’s Opp’n”), ECF No. 47; and • Defendant’s Reply to Opposition to Second Motion to Withdraw Guilty Plea (“Def.’s Reply”), ECF No. 48. whole, the Court DENIES Defendant Magruder’s Motion to withdraw his guilty plea. The Court

concludes Defendant Magruder has not presented a fair and just reason for granting the

withdrawal.

I. FACTUAL BACKGROUND

On June 10, 2019, a criminal complaint was filed against Defendant Magruder, stating

that he violated

(a)(1) and (b)(1)(A) by possessing with intent to distribute a

mixture and substance containing one kilogram or more of heroin. ECF No. 1. That same day,

Defendant Magruder was arrested and made an initial appearance before Magistrate Judge Robin

Meriweather. Defendant Magruder was appointed counsel and was held in temporary detention.

On June 13, 2019, a detention hearing was held before Magistrate Judge Meriweather, and

Defendant Magruder consented to detention.

On June 24, 2019, this Court held its first status conference with Defendant Magruder.

Defense counsel indicated that he had received but had not yet reviewed the discovery and

requested an additional 30 days. June 24, 2019 Minute Order. The Court held the next status

conference on August 1, 2019, during which Defense counsel requested additional time to

review discovery and to determine how to proceed. Aug. 2, 2019 Minute Order. The parties

returned to the Court on September 13, 2019. At this time, Defendant Magruder indicated that he

intended to proceed to trial and the Court ordered the parties to propose pre-trial deadlines. Sept.

13, 2019 Minute Order. Also on that day, the Court ordered the Probation Office to complete a

criminal history calculation so that the parties would have access to the relevant information on

the advisory sentencing guidelines prior to trial. ECF No. 6.

When the parties returned to the Court for a status conference on October 4, 2019,

Defense counsel indicated that Defendant Magruder had been provided with a plea offer.

2 Defendant Magruder required additional time to consider the plea offer. Oct. 4, 2019 Minute

Order.

On October 8, 2019, the parties conducted another status conference. At this status

conference, Defendant Magruder indicated that he intended to accept the Government’s plea

offer. The plea offer, which was later formally accepted, was a Rule 11(c)(1)(C) plea of between

144 and 180 months, with a mandatory minimum of 10 years. Oct. 8, 2019 Minute Order. During

the status conference, Defense counsel explained that “Mr. Magruder appears to have at least two

prior convictions that, if the Government had filed the 851 notices, would have put him in

jeopardy of receiving a mandatory minimum term of incarceration of 25 years.” Tr. Oct. 8, 2019,

ECF No. 19, 4:20-23. Even absent a

notice, the Government stated that if

Defendant Magruder pled to the indictment his advisory sentencing guidelines range would be

262 to 327 months, with a mandatory minimum of 10 years.

. Defense counsel

explained that the plea offer would reduce the incarceration time “a considerable amount.”

. Defendant Magruder affirmed that he had received and reviewed the evidence against him.

.

During the next October 22, 2019 status conference, the Court explained the Probation

Office’s findings on Defendant Magruder’s criminal history calculation. The Court also stated

that, as a career offender, Defendant Magruder would likely be eligible for a

notice by the Government, increasing the mandatory minimum sentence to 25 years. During the

status conference, Defendant Magruder expressed some confusion as to the Rule 11(c)(1)(C)

plea. Tr. Oct. 22, 2019, ECF No. 20, 7:13-14. The Court explained that Defendant Magruder

faced a mandatory minimum of 10 years based on his charge. If the Government filed a

notice, for which it appeared Defendant Magruder was eligible, the mandatory

3 minimum would move up to 25 years.

. The Court stated that it had no control over

the mandatory minimums and could not sentence Defendant Magruder to a lesser sentence than

the mandatory minimum.

. The Court further explained that if the Rule 11(c)(1)(C)

plea was accepted by the defendant and the Court, Defendant Magruder’s sentence would have

to be between 144 and 180 months.

. The Court explained to Defendant Magruder

“this is your decision. Your counsel can go over the evidence with you, can go over what the

choices are that you have, what the consequences are, can give you advice; and you can decide to

accept it or not.”

. After reviewing the effect of the plea offer, Defendant

Magruder confirmed that all requested discovery had been provided.

. Defendant

Magruder further stated that he was prepared to go forward with the plea agreement.

at 13:14-

17.

On October 25, 2019, Defendant Magruder was placed under oath and pled guilty,

accepting the Rule 11(c)(1)(C) plea agreement, setting a sentence of 144 to 180 months. ECF

No. 13. The Court accepted the plea but held in abeyance accepting the proposed sentence until

after the Court could review the presentence report.

On November 20, 2019, the Court received a letter from Defendant Magruder which was

dated October 25, 2019. ECF No. 17. In the letter, Defendant Magruder stated that he was not

satisfied with his prior counsel based, in part, on his counsel’s alleged failure to properly

investigate the case. Defendant Magruder also expressed some confusion as to whether or not his

plea agreement contained a mandatory minimum of 10 years.

That same day, Defendant

Magruder’s counsel filed a motion to withdraw. ECF No. 15.

On December 2, 2019, the Court appointed Defendant Magruder new counsel and set

another status conference in the case, allowing new counsel adequate time to prepare. The Court

4 further stayed the deadlines for the sentencing briefing. Dec. 6, 2019 Minute Order. On

December 12, 2019, the Court held a status conference where Defendant Magruder was

represented by his new counsel. Defendant Magruder expressed that he was satisfied with his

new counsel. The Court set a further status conference to allow Defendant Magruder time to

speak with his new counsel about how to proceed. Dec. 12, 2019 Minute Order. On January 27,

2020, the Court held another status conference at which Defendant Magruder indicated his

intention to file a motion to withdraw his guilty plea. The Court set a briefing schedule. Jan. 27,

2020 Minute Order.

Prior to the filing of a motion to withdraw his guilty plea, Defendant Magruder’s new

counsel filed a motion to withdraw due to a fundamental disagreement on the posture of the case.

ECF No. 21. On March 6, 2020, the Court granted the motion to withdraw and again appointed

new counsel for Defendant Magruder. Mar. 6, 2020 Minute Order. The Court further vacated the

briefing schedule for the motion to withdraw and set a new status conference date.

Prior to the next status conference, the Court was hindered by the COVID-19 restrictions.

See In Re: Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic,

Standing Order 20-9(BAH), Mar. 16, 2020. The Court ordered Defendant Magruder to file a

notice indicating if he intended to proceed with moving to withdraw his guilty plea so that the

Court could set further proceedings. Mar. 17, 2020 Minute Order.

On May 6, 2020, Defendant Magruder filed a Notice indicating his intent to move to

withdraw his guilty plea. ECF No. 26. Defendant Magruder filed his first motion to withdraw his

guilty plea on May 29, 2020. See Def.’s Mot. to Withdraw Plea of Guilty, ECF No. 27 (“Def.’s

First Mot. to Withdraw”). In that motion, Defendant Magruder argued that his prior counsel was

ineffective for failing to provide Defendant with pertinent discovery and that he was coerced into

5 accepting a Rule 11(c)(1)(C) plea. See Def.’s First Mot. to Withdraw; Def.’s Reply in Support of

First Mot. to Withdraw, ECF No. 29. The Court denied Defendant Magruder’s First Motion to

Withdraw on July 20, 2020, concluding that he had not demonstrated that he was prejudiced by

any failure by his previous counsel to provide him with relevant discovery. Mem. Op. at 8-9, 12,

ECF No. 35. The Court also found that Defendant Magruder had not demonstrated that he had

been coerced into accepting a plea.

.

After the Court denied Defendant Magruder’s First Motion to Withdraw, the parties

jointly proposed a schedule for proceeding with sentencing. See ECF No. 35.The Court ordered

the parties to file sentencing memoranda in December 2020, and scheduled Defendant

Magruder’s sentencing hearing for January 7, 2021 at 10:00 a.m. Order, ECF No. 40.

During this time, Defendant Magruder made additional discovery requests to the

Government, including requests for two warrants authorizing the FBI to obtain prospective GPS

location data from two cell phones. See Def.’s Mot. at 1; Gov.’s Opp’n at 2. In responding to

these requests, the Government learned that a return had not been filed for one of the two

warrants. Def.’s Mot. at 1; Gov.’s Opp’n at 2. The application for the warrant at issue (the

“Warrant”) and supporting affidavit (the “Affidavit”) were filed with the court on May 10, 2019

and granted by the magistrate judge on the same date. See Gov.’s Opp’n Ex. 1. The Warrant

directs that it must be executed on or before May 23, 2019.

. The magistrate judge also

issued an Order authorizing FBI agents to “ascertain the physical location of the cellular

telephone . . . with service provided by Verizon” and requiring “Verizon, the current service

provider for the target telephone, [to] assist agents of the FBI by providing all information,

facilities, and technical assistance needed to ascertain the Requested Location Information[.]”

Gov.’s Opp’n Ex. 3, at 3. Both parties agree that the Warrant allowed law enforcement agents to

6 track Defendant Magruder on the days leading up to his arrest on June 9, 2019. Def.’s Mot. at

1-2; Gov.’s Opp’n at 2.

On January 5, 2021, two days before his scheduled sentencing hearing, Defendant filed

his Second Motion to Withdraw Plea of Guilty based on the “newly discovered evidence” that a

return had not been filed for the Warrant and on other purported errors with the Warrant. See

Def.’s Mot. The Court vacated Defendant Magruder’s sentencing hearing and set a briefing

schedule on Defendant’s motion. Jan. 5, 2021 Minute Order. The Government opposes

Defendant’s motion.

II. LEGAL STANDARD

Under Federal Rule of Criminal Procedure 11, a defendant is permitted, before a sentence

is imposed, to 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). While presentence withdrawal motions

should be “‘liberally granted,’ they are ‘not granted as a matter of right.’” United States v.

Thomas,

(D.D.C. 2008) (quoting United States v. Ahn,

(D.C. Cir. 2000)).

When ruling on a motion to withdraw a guilty plea, courts in this Circuit consider the

following factors: “(1) whether the defendant asserted a viable claim of innocence; (2) whether

the delay between the guilty plea and the motion to withdraw has substantially prejudiced the

government’s ability to prosecute the case; and (3) whether the guilty plea was somehow

tainted.” United States v. Taylor,

, 929 (D.C. Cir. 1998) (internal quotation marks

omitted). The third factor is viewed as the “most important.” Id. (internal quotation marks

omitted).

7 III. DISCUSSION

Defendant Magruder argues that he should be able to withdraw his guilty plea because

the Government failed to file a return for the Warrant seeking cell phone location data. Def.’s

Mot. at 1. He contends that the lack of return “prejudices” his ability “to ascertain whether law

enforcement complied with the warrant and executed the warrant on or about May 23, 2019 . . .

as directed by the Warrant.” Id. Defendant Magruder also argues that materials sought in the

Warrant were not addressed in the supporting affidavit, and therefore the Warrant lacked

probable cause. Id. at 4-5. For the reasons set forth below, the Court finds that neither argument

provides a basis for Defendant Magruder to withdraw his guilty plea.

A. Tainted Plea

The Court first considers whether Defendant Magruder’s guilty plea “was somehow

tainted.” United States v. West,

(D.C. Cir. 2004) (internal citations omitted).

This factor is “the most important” and requires “a showing that the district court’s taking of the

guilty plea either failed to conform to the requirements of Federal Rule of Criminal Procedure 11

. . . or was in some other sense constitutionally deficient.” United States v. Tolson,

(D.D.C 2005) (internal citations and quotation marks omitted). A defendant’s failure to

“demonstrate some constitutional or procedural error in the taking of [his] guilty plea . . . will

often justify a court’s denial of a motion to withdraw that plea even where the movant makes out

a legally cognizable defense to the charges.” Id.; see also United States v. Cray,

(D.C. Cir. 1995) (“[A] defendant who fails to show some error under Rule 11 has to

shoulder an extremely heavy burden if he is ultimately to prevail [on withdrawing his plea].”).

Defendant does not appear to argue that his plea did not conform to the requirements of

Rule 11, or that there was any constitutional defect in the plea itself. Rather, Defendant

8 Magruder’s arguments rest solely on purported defects with the Warrant and the lack of return,

suggesting that these errors would provide a basis to challenge his arrest and the search of his

backpack. See Def.’s Mot. at 1-2, 4. Because Defendant Magruder fails to address at all how

these purported errors “tainted” his guilty plea, the Court finds that he has failed to carry his

burden on this “most important” factor. The Court shall nonetheless consider the remaining two

factors.

B. Viable Defense

Because Defendant Magruder does not clarify which of the three factors the purported

errors with the Warrant implicate, the Court considers these errors in examining whether he has

established “a viable claim of innocence.” See supra Part II. A defendant seeking to withdraw a

guilty plea “must make out a legally cognizable defense to the charge against him.” United States

v. McCoy,

(D.C. Cir. 2000) (quoting Cray,

) (internal

quotation marks omitted). The defendant must “affirmatively advance an objectively reasonable

argument that he is innocent, for he has waived his right simply to try his luck before a jury.”

(quoting Cray,

) (internal quotation marks omitted). Even when a court views this

factor under the lens of “legally cognizable defense,” as opposed to “viable claim of innocence,”

a defendant still needs to “affirmatively advance an objectively reasonable argument that he is

innocent.” United States v. Robinson,

(D.C. Cir. 2009).

Here, Defendant Magruder does not allege actual innocence. Though not explicit in his

Motion, he instead appears to suggest that had he known about the lack of return and alleged

errors with the Warrant, he would have moved to suppress evidence obtained as a result of the

Warrant’s execution. See, e.g., Def.’s Mot. at 2 (“If the warrant was not executed within [the

specified] time frame, law enforcement’s actions were illegal in surveilling [Defendant],

9 stopping and arresting [Defendant] and seizing the drugs found in the backpack he was

carrying.”). Without so much as a general denial of guilt, the Court finds that this factor does not

support a withdrawal of Defendant Magruder’s guilty plea. See United States. v. Curry,

(D.C. Cir. 2007) (faulting the defendant where his brief “does not include a single

sentence declaring that he is actually innocent or disclaiming his admission of guilty at the plea

proceeding”).

Even if the Court were to assume that Defendant Magruder is not required to assert actual

innocence and that a legally cognizable defense is sufficient, the Court concludes that Defendant

Magruder has also failed to assert a legally cognizable defense based on either of the two

Warrant errors he identifies.

First, it is undisputed that the FBI failed to file the return for the Warrant in this case.

Def.’s Mot. at 1; Gov.’s Opp’n at 2. Defendant Magruder argues that the lack of return

prejudices his ability to ascertain whether the Warrant was executed within the required

timeframe. Def.’s Mot. at 2. Defendant Magruder contends that if the Warrant was executed after

May 23, 2019, then law enforcement’s surveillance, stop, and arrest of Defendant Magruder, and

the resulting seizure of drugs from his backpack were illegal.

Federal Rule of Criminal Procedure 41(f)(1)(D) requires that an “officer executing the

warrant must promptly return it—together with a copy of the inventory—to the magistrate judge

designated on the warrant.” Fed. R. Crim. P. 41(f)(1)(D). However, technical violations of Rule

41 do not automatically mandate suppression of evidence. United States v. Burroughs,

(D.D.C. 2012) (noting that the D.C. Circuit has “squarely rejected the notion

that failure to timely return a federal search warrant . . . provide[s] a basis to suppress the results

of the search warrant” (citing United States v. Gerald,

(D.C. Cir. 1993))); see

10 also United States v. Welch,

(8th Cir. 2016) (“[A Rule 41] procedural

violation is not per se an unreasonable search and seizure in violation of the Fourth

Amendment.”); United States v. Jacobson,

(E.D.N.Y. 2014) (“Even

where government officials violate the requirements of Rule 41, courts must be wary in

extending the exclusionary rule in search and seizure cases to violations of Rule 41 alone.”

(internal citations and quotation marks omitted)). Rule 41 violations may lead to exclusion of

evidence only when (1) there was prejudice “in the sense that the search might not have occurred

or would not have been so abrasive if the rule had been followed”; or (2) there is evidence of

“intentional and deliberate disregard of a provision in the rule.” Jacobson,

;

see also United States v. Motz,

(9th Cir. 1991) (“Failure to comply with

Rule 41 requires suppression of property seized only where agents would not have carried out

the search had they been required to follow the rule and where they intentionally and deliberately

disregarded a provision in the Rule.” (internal quotation marks and punctuation omitted)).

Defendant Magruder has failed to establish prejudice or offer any evidence of

“intentional and deliberate” disregard of Rule 41. Defendant Magruder claims that the FBI’s

failure to file the return “prejudices” his ability to determine whether the search was executed by

May 23, 2019, as required by the Warrant. Def.’s Mot. at 2 The Government, however,

submitted evidence showing that the FBI transmitted the Order authorizing the collection of cell

phone location data to Verizon on May 13, 2019—ten days before the May 23, 2019 deadline for

the Warrant’s execution. See Gov.’s Opp’n Ex. 3. The Government also submitted an excerpt of

the geolocation data provided by Verizon, which includes entries beginning on May 13, 2019,

see Gov.’s Opp’n Ex. 2, demonstrating that “Verizon began to provide GPS information for the

defendant’s phone to agents that same day.” Gov.’s Opp’n at 4. Defendant counters that although

11 the spreadsheet submitted by the Government “shows data starting on May 13, 2019,” there is no

indication that “law enforcement actually began receiving the data on May 13.” Def.’s Reply at 1

n.1 (emphasis added). Defendant concedes, however, that the FBI’s request to Verizon “does

request GPS ping data to be provided every 15 minutes,” which would indicate “that the data

was to be provided as it came in more or less and began on May 13, 2019.” Id.; see Gov.’s Opp’n

Ex. 3.

The Court finds that the Government’s evidence rebuts Defendant Magruder’s

speculation that the Warrant was executed outside of the time period specified the Warrant. The

FBI sent the Order directing Verizon to collect geolocation data for the subject cell phone on

May 13, 2019 and Verizon began collecting data on the same date. See Gov.’s Opp’n Ex. 1.

Although the failure to file a return does constitute a technical violation of Rule 41, the evidence

submitted by the Government demonstrates that the Warrant was executed within the required

timeframe.

Defendant Magruder also fails to establish any basis for his contention that the FBI’s

failure to file the returns “was intentional and deliberate to hide the misconduct of law

enforcement in not executing the warrant” within the specified time frame. Def.’s Mot. at 2.

Accordingly, the Court concludes that Defendant Magruder has not demonstrated a “viable

defense” based on a Rule 41 violation.

Defendant Magruder next argues that the Warrant itself was constitutionally defective

because the scope of the materials sought by the Warrant exceeds the scope of the supporting

Affidavit, which only related to “information about the location of the cellular telephone.” Def.’s

Mot. at 2-3 (emphasis added). Specifically, the Warrant includes as “property to be seized” two

categories of property not requested by the supporting Affidavit: (1) address books, contact and

12 buddy lists, calendar data, pictures, and files; and (2) text messages including content,

destination, and original phone numbers from June 2018 to May 2019. Id. at 3. Defendant

Magruder argues that the Warrant, therefore, sought material “not supported by probable cause”

and “hence all data obtained pursuant to the warrant, including the surveillance, seizure, and

arrest of Magruder as well as the search and seizure of the drugs found in the backpack was

illegal.” Id. at 4.

In response, the Government indicates that it did not transmit the Warrant containing the

list of items cited by Defendant to Verizon. Gov.’s Opp’n at 5. Rather, the FBI transmitted to

Verizon only the Order issued by the magistrate judge, which explicitly narrowed the permitted

search to “ascertaining the physical location of the target telephone” and “expressly exclude[ed]

the contents of any communications conducted by the user(s) of the target telephone.” Id. (citing

Gov.’s Opp’n Ex. 3, at 2). And, as a practical matter, the Government indicates that it did not

receive any information from Verizon other than location data. Id. Accordingly, even if the

Warrant contained an erroneous or overly broad list of items to be seized, Verizon did not rely on

the Warrant or collect the two categories of information listed by Defendant. See Gov.’s Opp’n

at 6-7. Rather, Verizon relied on the Order, which authorized only disclosure of location data—

and the Government received only that information to track Defendant’s location. Id. Defendant

Magruder does not dispute that the location data authorized by the Order was supported by

probable cause. See Def.’s Mot. at 3 (indicating that the Affidavit seeks “information about the

location about this cellular telephone”). Nor does Defendant argue that it was improper for the

FBI agents or Verizon to rely on the Order. 2 Def.’s Reply at 2-3. The Court concludes that even

2 Defendant Magruder argues that it was reasonable to assume that the Warrant was provided to Verizon because it was signed one minute after the Order. See Def.’s Reply at 2. The Court is 13 if the Warrant erroneously listed as items to be seized cell phone content not supported by the

Affidavit, the Government has provided sufficient evidence to demonstrate that neither Verizon

nor the Government collected information beyond the cell phone’s location data. 3

The Court concludes that Defendant Magruder has failed to demonstrate a legally

cognizable defense supporting his motion to withdraw his guilty plea.

C. Prejudice from Delay

As a final factor, the Court considers whether or not the delay between the guilty plea and

the motion to withdraw has substantially prejudiced the Government’s ability to prosecute the

case. In this case, the Government does not argue that it would be prejudiced by Defendant

Magruder’s withdrawal of his guilty plea, so this factor does not interfere with Defendant

Magruder’s motion to withdraw. In any event, this factor “has never been dispositive in our

cases.” Curry,

(upholding denial of withdrawal of guilty plea even though the

Government did not argue prejudice) (quoting United States v. Hanson,

(D.C.

Cir. 2003)). Accordingly, even though the Government does not claim prejudice from the

withdrawal, Defendant Magruder’s motion to withdraw remains insufficient as he has failed to

establish that his plea was tainted or that he has a viable claim of innocence or a cognizable

defense.

unpersuaded by this assumption, especially in light of the government’s representation that it faxed only the Order to Verizon. See Gov.’s Opp’n Ex. 3. 3 Defendant Magruder also argues that because “the proposed search warrant does not authorize the seizure of any tangible property . . . all data obtained pursuant to the [W]arrant, including the surveillance, seizure, and arrest of Magruder as well as the search and seizure of the drugs found in the backpack was illegal.” Def.’s Mot. at 3-4. This argument, however, rests on Defendant Magruder’s incorrect assumption that Verizon collected and transmitted to the government content other than the cell phone’s location—which, as noted, the government has rebutted. 14 D. Hearing

As a final matter, the Court must decide whether an evidentiary hearing is warranted in

this case. Generally, when a defendant seeks to withdraw a guilty plea, “the district court should

hold an evidentiary hearing to determine the merits of the defendant’s claims.” Taylor, 139 F.3d

at 932. Here, the Court finds that an evidentiary hearing is unnecessary. The Court’s conclusions

rely on evidence submitted by the Government rebutting Defendant Magruder’s arguments of

prejudice associated with the errors in the Warrant. An evidentiary hearing would not alter the

Court’s findings.

Additionally, the Court notes that “[a] district should ordinarily conduct an evidentiary

hearing upon request.” Thomas,

(emphasis added). In this case, Defendant

Magruder never requested that the Court hold an evidentiary hearing in connection with his

motion to withdraw. For these reasons, the Court concludes that it would not be benefitted by an

evidentiary hearing. See Curry,

(finding that there was “no need for the court to

conduct an evidentiary hearing” where the facts were not in dispute).

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant Magruder’s [46] Second Motion

to Withdraw Guilty Plea. Defendant Magruder has failed to show that his plea was tainted or that

he has a viable claim of innocence or a cognizable defense to the charge to which he pled guilty.

An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

15