Opinion
CRIMINAL ACTION NO. 1:12cr237-MHT (WO)
02-21-2014
UNITED STATES OF AMERICA v. VERNON WAYNE SMITH, JR.
OPINION AND ORDER
At sentencing on February 13, 2014, the court was presented with a plea agreement in which defendant Vernon Wayne Smith, Jr. would plead guilty to one count of transfer of obscene material to a minor, 18 U.S.C. § 1470, and would receive a sentence of 15 months in prison; the other counts, including the charge of accessing child pornography with intent to view, 18 U.S.C. § 2252A(a)(5)(B), would be dismissed. It was apparent from the presentence report that Smith allegedly did more than transfer or attempt to transfer obscene material. He allegedly attempted to solicit sexual contact with an individual he believed to be a minor, and he may also have been "grooming" her for sexual contact. There is also substantial evidence that he possessed a significant amount of child pornography at some point. While that evidence may not be sufficient to support a conviction on the child-pornography count of the indictment, in combination with Smith's other conduct it does support the conclusion that he had a sexual interest in children upon which he was prepared to act. Given these circumstances, the court was not able to accept the plea agreement and proposed sentence of 15 months. "A decision that a plea bargain will result in the defendant's receiving too light a sentence under the circumstances of the case is a sound reason for a judge's refusing to accept the agreement." United States v. Gamboa, 166 F.3d 1327, 1330 (11th Cir. 1999) (internal quotation marks omitted).
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Accordingly, it is ORDERED as follows:
(1) The plea agreement between defendant Vernon Wayne Smith, Jr. and the government is rejected.
(2) Defendant Smith's guilty plea is withdrawn. The court understood defendant Smith to want to withdraw his plea, but, if you still wants to pursue the plea, he should so inform the court within seven days from the date of this order.
(3) This case is set for jury selection and trial on March 10, 2014, at 10:00 a.m., at the federal courthouse in Dothan Alabama.
Myron H. Thompson
UNITED STATES DISTRICT JUDGE