Opinion
No. 11 CR-219 RS
10-12-2011
UNITED STATES OF AMERICA, Plaintiff, v. JAY TREES, Defendant.
MELINDA HAAG United States Attorney KATHRYN HAUN Assistant U.S. Attorney ADAM PENNELLA Counsel for Defendant
MELINDA HAAG (CABN 132612)
United States Attorney
MIRANDA KANE (CABN 150630)
Chief, Criminal Division
KATHRYN R. HAUN (DCBN 484131)
Assistant United States Attorney
San Francisco, California 94102
Attorneys for United States
STIPULATED NOTICE AND
PROPOSED ORDER
Sentencing: November 8, 2011 at 2:30 p.m.
Defendant Jay Trees entered a change of plea pursuant to a Rule 11(c)(1)(c) Plea Agreement before the Court on August 23, 2011. In that Agreement, the parties agreed that the adjusted offense level was 23, and was silent as to the defendant's criminal history. The parties have recently discovered, however, that due to the defendant's criminal history the defendant qualifies as a Career Offender under Section 4B1.1 of the Sentencing Guidelines. This includes some history that did not "time out" due to subsequent probation/parole violations. The parties were not aware the defendant was a career offender at the time the existing Plea Agreement was entered.
This notwithstanding, the parties continue to believe that an overall sentence at the mandatory minimum term of imprisonment (60 months in this case) is the appropriate disposition when taking into account all of the 18 U.S.C. Section 3553(a) factors. The parties intend to detail why that is so in their respective sentencing memoranda to the Court. However, because the existing Plea Agreement contains the non-career offender guidelines, the parties believe the best course of action is to amend the existing Plea Agreement so as to reflect the correct Career Offender guidelines.
With the Court's permission, the parties are prepared to either (1) execute a short amendment to the existing Plea Agreement, or alternatively to (2) execute an entirely new Plea Agreement. In either scenario the parties would lodge a draft with the Court in advance of the next scheduled appearance, and would also be prepared for the Court to conduct a brief voir dire with the defendant with respect to the revised Plea Agreement or amendment thereto at the sentencing hearing. The parties would be prepared to proceed with sentencing at the same hearing, scheduled for November 8, 2011. A proposed Order is attached for the Court's consideration, as it is hoped that the Court can inform the parties which course of action it deems appropriate in these circumstances.
IT IS SO STIPULATED.
Respectfully submitted
MELINDA HAAG
United States Attorney
KATHRYN HAUN
Assistant U.S. Attorney
ADAM PENNELLA
Counsel for Defendant
[PROPOSED] ORDER
The parties have filed a stipulated notice of intent to amend the Plea Agreement in this case. Upon consideration of that notice, the Court hereby directs that, by November 4, 2011, the parties shall lodge with the Court:
[(A) An Amendment to the existing Plea Agreement _________]Upon the filing of the above-mentioned document, the matter will proceed with sentencing [as presently calendared/will proceed with sentencing on____________ ].
[(B) A Revised Plea Agreement ______×________]
[(C) Other________________________]
IT IS SO ORDERED.
THE HON. RICHARD SEEBORG
United States District Court Judge