Opinion
Criminal No. 04-123(JAG).
April 7, 2005
REPORT AND RECOMMENDATION
On this date defendant appeared before the undersigned to plea guilty to Counts I and II of the superseding indictment charging him with violating of 21 U.S.C. § 841 and 18 U.S.C. §§ 924(c), to wit, possession with intent to distribute cocaine, and possession of a firearm in furtherance of a drug trafficking crime. Defendant was represented by attorney Jorge Díaz Reverón. The government was represented by AUSA Timothy Henwood. The parties duly executed a consent form permitting the undersigned to take defendant's plea, which is entered into pursuant to a plea agreement reached with the Government, and which has been filed in Court.
Upon observing defendant throughout the proceeding, as well as listening to his answers to the multiple questions posed by the Court, the undersigned finds him competent to enter a knowing and voluntary plea. More so, defendant acknowledged he was not coerced nor intimidated into entering the plea. Defendant was advised at the hearing of the minimum and maximum statutory penalties and fines he faces. He was further advised that his plea is one pursuant to Fed.R.Crim.P. 11(c)(1)(A) and (B). Accordingly, the sentencing Judge is not bound by the sentence recommendation contained therein. The undersigned also advised defendant of the constitutional rights he waives by entering a guilty plea.
In this respect, the Court indicated that pursuant to the Supreme Court's recent pronouncements in Booker and Fanfan the federal Sentencing Guidelines are no longer mandatory upon the Court, however, must be considered as advisory.
Upon inquiry by the Court, defendant accepted all the elements of the offense outlined in Counts I and II of the superseding indictment and that he acted knowingly and intentionally during the commission of the offenses. He further accepted all the facts contained in the Government's version of facts.
Defendant also accepted that aside from the conditions contained in the plea agreement, no other promises, conditions or representations have been agreed to by the parties.
Defendant further conceded that should he receive the sentence proposed in the plea agreement, he will waive his right to appeal. Likewise, by entering the present plea, he is withdrawing his pending motion to suppress.
It is thus recommended by the undersigned that defendant's guilty plea be accepted, and sentence be imposed upon him accordingly.
This report and recommendation is issued pursuant to 28 U.S.C. § 636 and Local Rule 72(d).
SO RECOMMENDED.