The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge
ORDER DENYING THE GOVERNMENT'S MOTION TO WITHDRAW FROM PLEA AGREEMENT
Before the Court is the Government's Motion to Withdraw From Plea Agreement. (Doc. # 45.) After careful consideration of the motion, the supporting and opposing memoranda, the supplemental memoranda, and the attached documentation, the Court DENIES the Government's motion because it concludes that the Government orally modified the written plea agreement.
This case stems from a plea agreement entered into by the Government and Defendant Richard Silva, Jr. On December 19, 2010, the Government filed a complaint against Defendant, alleging that Defendant violated 21 U.S.C. §§ 841(a)(1) and 846 by attempting to possess more than 50 grams of methamphetamine with intent to distribute. (Doc. # 1 at 1.) Subsequently, Defendant and the Government entered into a written plea agreement. (Doc. # 44.) Therein, the Government agreed to dismiss the Sentencing Enhancement Information filed on July 22, 2011, if Defendant pled guilty to attempting to possess with intent to distribute more than fifty grams of methamphetamine. (Id. at 2, ¶ 4.)
In the agreement, Defendant admitted that he sent a box containing methamphetamine from Las Vegas to Hawaii through FedEx. (Id. at 4, ¶ 8.) After FedEx employees deemed the package suspicious, DEA agents tested the package and found that it contained methamphetamine. (Id. at 4-5, ¶ 8.) The DEA substituted sham methamphetamine for the real drugs, and installed a beeper warrant in the package. (Id. at 5, ¶ 8.) When Defendant opened the package, DEA agents arrested him. (Id.)
After being arrested, Defendant told the DEA agents that a male had approached him at the Las Vegas airport on December 6, 2010, and said that he would pay Defendant $500 to receive a package of Christmas presents in Hawaii. (Id. at 5-6, ¶ 8.) Defendant agreed to the proposal and met the male the next day. (Id. at 6, ¶ 8.) The male gave Defendant the $500 and the shipping receipt. Defendant told the DEA agents that he discovered the package possibly contained drugs after opening it. (Id.) The DEA analyzed the contents of the package, and determined that it contained 1,087 grams of methamphetamine. (Id.)
On October 25, 2011, the Court held a hearing on Defendant's Motion For Withdrawal of Not Guilty Plea and to Plead Anew. (Doc. # 42.) The Court conducted a plea colloquy and advised Defendant of his rights. (Doc. # 54, Ex. 1 at 4-16.) At the hearing, the Court asked the prosecuting attorney to summarize the factual background of the case, and his summary did not materially differ from the plea agreement. (Id. at 17-20.) The Court asked the Defendant to summarize the basis for his plea, and Defendant stated that he did not know the package contained drugs at the time he sent it. (Id. at 21.) He claimed that he discovered that the package contained drugs after opening it. (Id.)
The Court expressed reservations about the plea agreement. Defendant then stated that he knew the package contained drugs from the amount of money he received to mail the package. (Id. at 24.) The Court questioned the Defendant and counsel as follows:
THE DEFENDANT: I had the intention of delivering drugs.
THE COURT: Are you sure about that?
THE DEFENDANT: Right, because of the money he gave me. THE COURT: Because of the amount of money.
THE DEFENDANT: Yeah, but I didn't ask him, but I knew it was. THE COURT: Okay. You didn't know the -- you didn't know the type of drug though I take it; is that right?
THE DEFENDANT: Right, but I knew it ...