United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO WITHDRAW GUILTY
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
defendant who pleaded guilty to one charge of possession of
child pornography moves to withdraw his guilty plea, arguing
primarily that his guilty plea was not made knowingly,
intelligently, and voluntarily and that he received
ineffective assistance of counsel. Given the record and the
defendant's own representations to the Court, the Court
concludes the defendant failed to meet his burden to
demonstrate a fair and just reason to withdraw his guilty
United States v. Goguen - 1:11-cr-00003-JAW
January 12, 2011, a federal grand jury indicted Robert
Frederick Goguen for failure to register as a sex offender.
Indictment (ECF No. 1). On July 14, 2011, Mr. Goguen
pleaded guilty to the charge in the indictment, Min.
Entry (ECF No. 43), and on September 14, 2012, the Court
sentenced Mr. Goguen to sixteen months of incarceration,
three years of supervised release, a $100 special assessment,
and no fine. J. (ECF No. 80). On January 31, 2013,
the Court entered an amended judgment adding twenty-one
months to Mr. Goguen's period of incarceration, for a
total of thirty-seven months. Am. J. (ECF No. 90).
Mr. Goguen did not file a direct appeal of his conviction or
sentence to the Court of Appeals for the First
Goguen was released from incarceration and placed on
supervised release on May 11, 2013. Request for Modifying
the Conditions or Term of Supervision (ECF 93). The
United States (Government) alleged that he violated his
supervised release on August 5, 2013, by viewing pornographic
videos at the Penobscot County Judicial Center's law
library. Pet. for Warrant or Summons for Offender Under
Supervision (ECF No. 96). On September 23, 2013, he
admitted to the violation, Min. Entry (ECF No. 112),
and the Court revoked supervised release, sentencing Mr.
Goguen to imprisonment for five months and supervised release
for thirty-one months. Revocation J. (ECF No. 113).
the revocation hearing and sentencing, on October 1, 2013,
Mr. Goguen filed a notice of appeal for the revocation
judgment, Notice of Appeal (ECF No. 116), and a
motion for the Court to appoint new counsel. Pro Se Mot.
to Appoint New Counsel (ECF No. 117). He claimed that
his waiver of rights at the revocation hearing was not
knowing and voluntary and that the Court erred in imposing a
sex offender treatment condition as one of the conditions of
his supervised release. J. of Ct. of Appeals for the
First Circuit (ECF No. 142). Then, on October 28, 2013,
Mr. Goguen filed a motion for reconsideration. Mot. for
Recons. (ECF No. 125). On January 10, 2014, Mr. Goguen
filed a self-styled motion for notice of appeal consideration
and possible appointment of counsel. Mot. for Notice of
Appeal Consideration and Possible Appointment of Counsel
(ECF No. 133). While the appeal was pending before the First
Circuit, the Court dismissed without prejudice Mr.
Goguen's motion for reconsideration, motion for notice of
appeal consideration, and motion to appoint counsel.
Order on Mot. for Recons., Mot. for Possible Appointment
of Counsel, and Mot. for Release of Seized Property (ECF
No. 140). On October 9, 2014, the First Circuit affirmed the
Court's revocation judgment. J. of Court of Appeals
for the First Circuit (ECF No. 142).
Goguen's second supervised release began on January 15,
2014. Pet. for Warrant or Summons for Offender Under
Supervision (ECF No. 144). The Magistrate Judge issued
an arrest warrant for Mr. Goguen on November 13, 2015, due to
an alleged violation of supervised release. Arrest
Warrant (ECF No. 146). On September 15, 2017, Mr. Goguen
admitted to violating the conditions of his supervised
release in a partial final revocation hearing. Min.
Entry (ECF No. 193). A final revocation hearing for the
imposition of a sentence on the supervised release violation
was scheduled for February 13, 2019, but it was cancelled on
February 7, 2019. Notice of Hr'g on Mot. (ECF
No. 276); Notice of Cancelled Hr'g (ECF No.
279). There has been no final revocation hearing on this
United States v. Goguen - 1:16-cr-00167-JAW
December 14, 2016, a federal grand jury indicted Mr. Goguen
for possession of child pornography depicting prepubescent
minors or minors under twelve years old, an alleged violation
of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and
2256(8)(A). Indictment (ECF No. 1). On September 15,
2017, after a motion to suppress evidence and a motion in
limine were resolved, Mr. Goguen pleaded guilty to this
charge. Min. Entry (ECF No. 64). Attorney Tzovarras,
Mr. Goguen's former counsel, repeatedly moved to extend
the time for filing objections to the presentence report and
to continue the sentencing hearing. Def.'s Mot. for
Enlargement of Time for Initial Disclosure of Pre-Sentence
Report (ECF No. 68); Def.'s Mot. for Extension
of Time to File Objs. to PSR Before Initial Disclosure to
Ct. (ECF No. 70); Def.'s Mot. to Continue
Sentencing (ECF No. 77); Def.'s Mot. for
Enlargement of Time to File Sentencing Mem. (ECF No.
79); Def.'s Mot. to Enlarge Time to File Sentencing
Mem. (ECF No. 84); Def.'s Mot. for Enlargement
of Time to Reply to Gov't's Resp. on Appl. of
Mandatory Minimum (ECF No. 88); Def.'s Mot. to
Continue Conference of Counsel (ECF No. 94);
Def.'s Mot. for Enlargement of Time to File
Sentencing Mem. (ECF No. 101); Def.'s Mot. to
Enlarge Time and Accept Filing of Sentencing Mem. as
Timely (ECF No. 103); Def.'s Mot. to Continue
Sentencing Hr'g (ECF No. 106). Finally, on January
30, 2019, the Court scheduled Mr. Goguen's sentencing
hearing for February 13, 2019, Notice of Sentencing
Hr'g (ECF No. 108), but on February 5, 2019, Mr.
Goguen's defense counsel moved for leave to withdraw as
his attorney. Def.'s Ex Parte Mot. for Leave to
Withdraw as Counsel (ECF No. 109).
Goguen's sentencing hearing was also substantially
delayed while the Court considered whether his prior
Connecticut conviction in 1996 for sexual assault in the
second degree triggered § 2252A(b)(2)'s mandatory
minimum. On November 16, 2018, the Court concluded that Mr.
Goguen's prior Connecticut conviction of sexual assault
in the second degree constitutes a qualifying prior offense
that triggers the mandatory ten-year imprisonment penalty
under § 2252A(b)(2). Order on Def.'s Mem. in
Opp'n to Appl. of the Mandatory Minimum Under 18
U.S.C. § 2252A(b)(2) (ECF No. 92).
April 22, 2019, Mr. Goguen filed a motion to withdraw his
guilty plea. Mot. to Withdraw Guilty Plea (ECF No.
113) (Def.'s Mot.). On May 13, 2019, the
Government filed its opposition to Mr. Goguen's motion.
Gov't's Resp. to Def.'s Mot. to Withdraw
Plea (ECF No. 114) (Gov't's Opp'n).
On May 28, 2019, Mr. Goguen filed his reply along with a
motion for oral argument or hearing. Def.'s Reply to
Gov't's Resp. to Mot. to Withdraw Guilty Plea
(ECF No. 115) (Def.'s Reply); Mot. for Oral
Arg./Hr'g (ECF No. 116).
THE PARTIES' POSITIONS
Mr. Goguen's Motion
Goguen claims his guilty plea entered on September 15, 2017,
was not knowing and voluntary and that he was not
sufficiently aware of the relevant circumstances and probable
consequences for various reasons. Def.'s Mot. at
2. Mr. Goguen asserts that during his plea hearing:
[T]he Court misstated the potential maximum and minimum
penalties as a result of apparent confusion as to whether the
images depicting “a prepubescent minor who had not
attained twelve years of age” was a sentencing factor
or an element of the offense. The court initially indicated
that the Defendant could be subject to a range of 0-10, 0-20
or 10-20 years of incarceration based upon the application of
the prepubescent minor language and the potential application
of a prior qualifying conviction. When asked if he understood
that those were the potential ranges of imprisonment he could
face the Defendant indicated that he did understand. These
ranges were not correct. This situation led to confusion on
the part of the Defendant as to whether prepubescent images
were an element of the crime or part of the criteria for
sentencing. The plea was not a knowing plea pursuant to Rule
Id. Mr. Goguen avers that the colloquy among the
Court and counsel at the Rule 11 hearing did not clarify this
confusion and that the parties expressed conflicting
viewpoints about certain language contained in 18 U.S.C.
2252A(a)(5)(B). Id. Mr. Goguen claims this confusion
amounted to structural error:
The Court then asked Mr. Goguen to admit that he possessed an
image depicting a prepubescent child and if the Defendant
understood that the potential range of his sentence was 10-20
years. The Defendant stated that he did. The fact that the
Defendant indicated that he understood that he could be
subject to a range of 0-10, 0-20 or 10-20 years and later
that he could be subject to 10-20 years demonstrates
confusion and indicates lack of a knowing and intelligent
Id. at 2-3.
Goguen claims he told his prior defense counsel that he
intended to withdraw his guilty plea immediately.
Id. at 3. Mr. Goguen says he “was not aware
and was not informed that he would be unable to make further
suppression arguments.” Id. Mr. Goguen
contends he was not advised by his prior counsel or by the
Court at the time of his guilty plea that he could have
entered a conditional guilty plea, which would have allowed
him to challenge the ruling on his motion to suppress while
still pleading guilty. Id. Mr. Goguen states shortly
after his guilty plea, he “contacted his prior counsel
in writing to request that he file a motion to rescind his
guilty plea. The attorney did not file a motion to withdraw
the Defendant's plea despite multiple requests by [him]
that he do so.” Id. Mr. Goguen also claims he
was not fully informed of all his potential defenses before
he entered his guilty plea. Id.
Goguen “wishes to withdraw his plea so he may fully
challenge the legality of the search that gave rise to both
of the cases . . . . Specifically, [he] wishes to challenge
the legality of the conditions that improperly
‘authorized' the search and seizure of his laptop .
. . . [and] appeal the [denial of his suppression
motion].” Id. at 4.
The Government's Opposition
Government contends that all factors outlined in United
States v. Gates, 709 F.3d 58, 68 (1st Cir. 2013), weigh
against Mr. Goguen's motion. Gov't's
Opp'n at 6. Citing the plea hearing transcript, the
Government says, “there is no doubt that the
defendant's plea was voluntary, intelligent, and
informed.” Id. The Government argues that Mr.
Goguen's argument that he was confused over the penalties
he faced is contradicted by the record. Id. at 7.
The Government asserts the fact that Mr. Goguen is not a
“novice to the criminal justice system or to federal
court” is relevant. Id. (citing United
States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir.
2003)). The Government states that the Court observed Mr.
Goguen at the plea hearing and listened to his answers to the
questions posed. Id. The Government says not being
able to “rely on what a defendant says at the Rule 11
hearing about his understanding, [would make] a huge number
of guilty pleas . . . vulnerable.” Id.
Government contends that Mr. Goguen's reasons for wishing
to withdraw his guilty plea are inadequate:
The defendant has failed to cite any authority to support an
argument that these are “fair and just” reasons
for the withdrawal of a guilty plea. This Court sets
deadlines for the filing of pretrial motions so that the
parties and the court can address those motions in a timely
manner and the case can move forward. The defendant did file
a motion to suppress in this case and the court issued an
order that resolved that motion. At the Rule 11 colloquy,
this Court told the defendant explicitly that a guilty plea
would waive his right to challenge that order. This Court
also told the defendant he was giving up his right to a trial
and the rights associated with a trial.
Id. at 8 (citations omitted). The Government says
Mr. Goguen's “concern in the face of a lengthy
sentence is understandable but it is not a fair and just
reason to negate his guilty plea.” Id. at 9.
The Government believes that the timing of Mr. Goguen's
motion weighs against him, considering that he pleaded guilty
in September 2017 and filed the present motion in April 2019.
Id. Lastly, the Government notes that Mr. Goguen is
not claiming he is innocent and “has not contradicted
his admissions at the Rule 11 hearing regarding the charged
crime and does not dispute . . . his representation at that
hearing that he was pleading guilty because he was actually
guilty.” Id. at 10.
Mr. Goguen's Reply
Goguen disagrees with the Government's contention that
the record does not demonstrate he was confused about the
potential penalties he faced:
[T]he fact is that the Defendant initially indicated that he
understood that he could be subject to a range of 0-10, 0-20
or 10-20 years and later after additional discussion stated
that he understood that he could be subject to 10-20 years.
Additionally, the Government described the . . .
“prepubescent minor” language as a
“sentencing factor” while defense counsel viewed
it as an element.
Def.'s Reply at 1-2. Mr. Goguen contends that
his confusion was not properly clarified. Id. at 2.
As evidence of his confusion, he says “[h]is claim that
he understood one sentencing range to be correct and only a
few minutes later that he understood a different range to be
correct is an obvious sign that he was ill informed by his
counsel and confused as to what he was agreeing to at the
proceedings.” Id. Mr. Goguen argues that the
Government failed to address his ineffective assistance of
counsel claim and that such a claim may constitute a
“fair and just reason” to withdraw a guilty plea.
Id. (citations omitted). He says his prior defense
counsel did not adequately inform him of his sentencing range
nor that it was possible to enter a conditional guilty plea.
Goguen reiterates that he was not aware he could enter a
conditional plea and that if he were, “it is unlikely
he would have entered the plea or at the least would have
opted to enter a conditional plea instead. Having further
examined the suppression issue [he] now wishes to pursue
additional suppression issues which could fundamentally alter
the posture of this case.” Id. at 3. Mr.
Goguen asserts he was not informed about all the possible
defenses he could present. Id. Mr. Goguen claims he
“did not know he could preserve appeal rights and was
not informed of defenses in this case [and] [u]nder the
circumstances the only fair and just reaction is to allow
[him] to withdraw his plea.” Id.
regard to the timing of his motion, Mr. Goguen states he has
told his current counsel that “the reason he attempted
to file his own . . . motion was because he had discovered
new information that related to the defenses and suppression
arguments that his [prior] attorney . . . had failed to
inform him of or further in the court.” Id. at
4. Under First Circuit precedent, Mr. Goguen claims
“the relevant temporal gap is the time between the
defendant's discovery of new information and the filing
of his motion, not the time between the Rule 11 and the
motion to withdraw.” Id. (internal quotation
marks and citations omitted). Mr. Goguen says, “[t]he
delay in time should not be held against [him] as the issue
was outside of his control and because his plea was not
knowing and intelligent the motion to withdraw his guilty
plea should be granted.” Id. at 4-5.
defendant may withdraw a guilty plea before he is sentenced
if he “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Under
this standard, courts consider: “ whether the plea
was voluntary, intelligent, knowing and in compliance with
Rule 11;  the strength of the reasons offered in support
of the motion [to withdraw];  whether there is a serious
claim of actual innocence;  the timing of the motion; and
 any prejudice to the government if the withdrawal is
allowed.” United States v. Dunfee, 821 F.3d
120, 127 (1st Cir. 2016) (quoting United States v.
Isom, 580 F.3d 43, 52 (1st Cir. 2009) (some alternations
in original)). The “core concerns of Rule
11-whether the plea was voluntary, intelligent, and
knowing-are the most important factors to consider.”
Isom, 580 F.3d at 52 (citations and internal
quotation marks omitted). “A defendant does not have an
unfettered right to retract a guilty plea and he bears the
burden to establish a fair and just reason for
withdrawal.” Dunfee, 821 F.3d at 127 (internal
quotation marks and citation omitted).
Voluntary, Intelligent, and Knowing
Goguen asserts his plea on September 15, 2017, “was not
knowing and voluntary and was made without with sufficient
awareness of the relevant circumstances and likely
consequences for several reasons.” Def.'s
Mot. at 2. Mr. Goguen says his plea was not knowing
because the Court initially indicated the wrong imprisonment
ranges, which led to him being confused “as to whether
prepubescent images were an element of the crime or part of
the criteria for sentencing[, ]” and that this
confusion was not clarified through additional discussion and
amounts to a “structural error”. Id. at
2-3. The Court disagrees.
Robert Goguen's Competency
outset of the hearing, the Court asked Mr. Goguen a
preliminary set of questions to determine whether he was
competent. Tr. of Proceedings at 3:3-4:6, United
States v. Goguen, 1:16-cr-00167-JAW (ECF No. 112)
(Plea Tr.). Mr. Goguen informed the Court that he
was forty-three-years-old, that he had gone through two years
of college, that he was not prescribed any medicine and had
not failed to take any medicine a doctor had told him he
should take, and that he had not used any drugs or alcohol in
the last twenty-four hours. Id. The Court confirmed
with Attorney Tzovarras that he had met with Mr. Goguen that
morning and had no concerns about Mr. Goguen's
competency. Id. The Court found him competent.
Id. Mr. Goguen has not challenged this finding in
his pending motions.
Court informed Mr. Goguen:
THE COURT: You understand that in deciding to plead guilty to
the new criminal charge and admitting the probation or
supervised release violation, you have a right to receive Mr.
Tzovarras's advice; however the decision as to whether to
plead guilty or admit the violation is not Mr.
Tzovarras's, it is yours, you understand that?
DEFENDANT: I do.
Id. at 5:5-11. The Court asked Mr. Goguen whether he
was pleading guilty to Count 1 contained in the indictment in
United States v. Goguen, 1:16-cv-00167-JAW, because
was actually guilty of the crime:
THE COURT: Now, Mr. Goguen, I have a very important question
for you and obviously in this courtroom I require an honest
and truthful answer. Have you pleaded guilty to the charge
contained in Count 1 of this indictment because you are
actually guilty of that crime and for no other reason?
DEFENDANT: I have.
THE COURT: And have you consented to the forfeiture because
you used the forfeited equipment in part to commit this
DEFENDANT: Yes, Your Honor.
Id. at 6:14-23.
Robert Goguen's Knowledge of the Charge
Court read Count 1 of the indictment and asked Mr. Goguen if
he understood the charge set forth in Count 1:
THE COURT: Now, Mr. Goguen, you are charged in a one-count
indictment, that indictment alleges that you committed a
crime, namely the possession of material containing child
pornography. It alleges that on about November 10, 2015, in
the District of Maine, which means the state of Maine, you
knowingly possessed material that contained an image of child
pornography that had been shipped and transported using any
means or facility of interstate and foreign commerce and in
affecting interstate and foreign commerce by any means
including by computer and that was produced using materials
that had been shipped or transported in and affecting
interstate or foreign commerce by any means.
The indictment further alleges that one or more images of the
child pornography possessed by you involved a prepubescent
minor or a minor who had not attained 12 years of age. It
alleges that you violated federal criminal law by possession
of material containing child pornography. Do you understand
the charge set forth in Count 1 of the indictment?
DEFENDANT: I do, Your Honor.
Id. at 7:22-8:15.
The Crime of Possession of Child Pornography: An
16-cr-00167-JAW, a federal grand jury indicted Mr. Goguen
with a violation of 18 U.S.C. § 2252A(a)(5)(B),
possession of child pornography. Indictment (ECF No.
1) (“Possession of Material Containing Child
Pornography”). The elements of the crime of possession
of child pornography are “ that [defendant]
knowingly possessed [a computer];  that the [computer]
contained at least one image of child pornography;  that
[defendant] knew that [the computer] contained an image of
child pornography; and  that the image of child
pornography had [been mailed; moved in interstate or foreign
commerce].” Judge Nancy Torresen, Pattern Criminal Jury
Instructions for the District Cts. of the First Circuit,
§ 4.18.2252 [updated: 7/15/15] (Pattern Criminal Jury
Rule 11 stage, the penalty provisions for a violation of
§ 2252A(a)(5)(B) are found in § 2252A(b)(2) and the
penalty provisions have a certain irreducible complexity
because they are tiered depending on the defendant's
prior criminal record and the nature of his offense:
Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or
imprisoned not more than 10 years, or both, but, if any image
of child pornography involved in the offense involved a
prepubescent minor or a minor who had not attained 12 years
of age, such person shall be fined under this title and
imprisoned for not more than 20 years, or if such person has
a prior conviction under this chapter, chapter 71, chapter
109A, or chapter 117, or under section 920 of title 10
(article 120 of the Uniform Code of Military Justice), or
under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of
child pornography, such person shall be fined under this
title and imprisoned for not less than 10 years nor more than
§ 2252A(b)(2). Accordingly, under § 2252A(b)(2), a
defendant potentially faces three ranges of penalties: (1) a
statutory maximum of ten years imprisonment and a fine if the
offense did not involve an image of prepubescent minor or a
minor who has not attained twelve years of age and the
defendant does not have a qualifying prior conviction; (2) a
statutory maximum of twenty years imprisonment and a fine if
the offense involved an image of child pornography which
contained a prepubescent minor or a minor who has not
attained twelve years of age but the defendant does not have
a qualifying prior conviction; and (3) a statutory minimum of
ten years and a twenty-year maximum term of imprisonment if
the defendant has a qualifying prior conviction. See
United States v. Breton, 740 F.3d 1, 20 n.23 (1st Cir.
outset of a Rule 11 hearing, a court usually does not know
whether a defendant has a criminal history and, if so,
whether his criminal history contains a qualifying prior
conviction. Also, although a court may have viewed an
exemplar of the child pornography that a defendant possessed
to make certain that the image fits within the statutory
definition of pornography, the judge does not know whether a
defendant will admit all of the contents of a prosecution
version, and in any event, the court typically informs a
defendant of the sentencing implications of his admission of
the contents of the prosecution version. Among other things,
a recitation of the tiered statutory scheme assures that the
defendant who admits that the material he possessed contained
images of prepubescent children is aware that his admission
has significant sentencing implications, increasing the
maximum term of incarceration from ten to twenty years. It
also prevents a defendant from later claiming that he did not
know that his admission of possessing prepubescent/minor
under the age of twelve images subjected him to a potentially
longer sentence. The same holds true of the imposition of a
mandatory minimum of ten years if the defendant has the
possibility of a prior qualifying conviction.
added complication is the Apprendi,
Alleyne, and Haymond line of caselaw, which
can be summarized as establishing the right to jury trial for
a fact that increases the statutory maximum or sets a
statutory minimum for a crime. See generally United
States v. Haymond, 588 U.S. ___, 139 S.Ct. 2369 (2019);
Alleyne v. United States, 570 U.S. 99 (2013);
Apprendi v. New Jersey, 530 U.S. 466 (2000). Thus,
Mr. Goguen had a right to a jury trial on whether he
possessed an image of child pornography that depicted a
prepubescent minor or minor under the age of twelve. By
contrast, there is an exception for prior convictions, since
the defendant previously had the right to contest the
effect of these developments in the law makes a description
of the potential penalties for a defendant who is pleading
guilty a rather complicated affair. By pleading guilty to the
crime of possession of child pornography, a defendant faces a
maximum of ten years imprisonment. If a child pornography
image depicts a prepubescent minor or minor under the age of
twelve, the statutory maximum increases to twenty years, and
if the defendant contests this narrow fact, namely whether an
image he possessed shows a prepubescent minor or a minor
under the age of twelve, he has a right to a jury trial on
this issue. If the defendant has a prior qualifying
conviction, then he is subject to a statutory maximum of
twenty years and a statutory minimum of ten years, but he is
not entitled to a jury trial on whether his prior conviction
is a qualifying conviction.
The Court's Recitation of Potential Penalties
this background, the Court reviewed the potential penalties
for the offense as required by Federal Rule of Criminal
Procedure 11(b)(1)(H)-(K). The Court noted that the penalty
provisions under § 2252A(b)(2) “are somewhat
complicated, ” but the Court went on to say:
[B]ut as I recall, Mr. Goguen, you're an intelligent
person, and I am sure you have reviewed this with your
attorney. I am going to spend a little while and relate ...