Opinion
CRIMINAL NO. 03-125 (HL)
July 14, 2003
Nereida Melendez-Rivera, Guillermo A. Villarmarzo, United States Attorney's Office, Hato Rey, PR, for plaintiffs.
Victor R. Gonzalez-Mangual, Santurce, PR, for defendants.
REPORT AND RECOMMENDATION
Above defendant was charged in a one-count Indictment wherein "being an alien previously deported from the United States, was found in Bayamón, Puerto Rico, that is in the United States, without obtaining, prior to his reembarkation at a place outside the United States the express consent of the Attorney General of the United States, or his successor, the Secretary of Homeland Security, acting through the Under Secretary for Border and Transportation Security". All in violation of 8 U.S.C. § 1326(a)(2) and (b)(2).
On July 8, 2003, defendant indicated he was to file a written motion entitled Motion for Change of Plea (D.E. # 15). The change of plea hearing was referred by the court and was scheduled before this Magistrate for July 14, 2003. At that time defendant, who was assisted by counsel from the Federal Public Defender's Office, was provided with the Waiver of Right to Trial by Jury, which he signed and agreed upon voluntarily after examination in open court, under oath.
Defendant indicated and confirmed his intention to plead guilty to Count One of the Indictment, upon being advised of his right to have said proceedings before a district judge of this court. Upon verifying through the defendant's statement his age, education, and any relevant aspect as to the use of medication, drugs, alcohol, or substance dependency, and psychological or psychiatric condition, so as to ascertain his capacity and ability to understand, answer, and comprehend the interactive colloquy with this Magistrate, a determination was made that he was competent and able to understand the proceedings.
The form entitled Consent to Proceed Before a United States Magistrate Judge in a Felony Case: for Pleading Guilty (Rule 11, Fed.R.Crim.P.), signed and consented by both parties is made part of the record.
Having further advised defendant of the charges contained in above-stated Count One, he was further examined and he verified as being correct that: he had consulted with his counsel prior to the hearing for change of plea, that he was satisfied with the services provided by his legal representative and he had time to discuss with him all aspects of the case, insofar, among other things, regarding the change of plea, the consent to proceed before a United States Magistrate Judge, the content of the Indictment and charges therein, his constitutional rights and the consequences of the waiver of same.
Defendant was specifically apprised by this Magistrate that upon withdrawing his initial plea of not guilty and now entering a plea of guilty to the charges specified, he was waiving his right to a public, speedy, and a trial by jury constituted by twelve jurors who have to unanimously agree to a verdict. He was also waiving his right to be presumed innocent and for the government to meet the obligation of establishing his guilt beyond a reasonable doubt. Furthermore, he was waiving his right during said trial to confront the witnesses who were to testify against him and be able to cross-examine them, through counsel at said trial, as well as present evidence on his behalf. He was also waiving the right to compel the attendance of witnesses and that subpoenas be issued to have them appear in court to testify on his behalf. Defendant was specifically apprised of his right to take the stand and testify, if he so decided, or not to testify, and no inference or decision as to his guilt could be made from the fact that he decides not to testify. Defendant was also explained his right not to incriminate himself; that upon such a waiver of all above-discussed rights a judgment of guilty and his sentence were to be based on his plea of guilty, and he would be sentenced by the judge after considering the information contained in a pre-sentence report. As to all the above, defendant provided an individualized and positive acknowledgment of each and every waiver and, with the assistance of his counsel, indicated he freely and voluntarily waived those rights and understood the consequences. During all this colloquy, defendant was made aware that he could freely request from this Magistrate any additional clarification, repetition, or ask questions and that he may consult with his attorney at any given time as to any issue.
The defendant expressed his understanding of the penalties prescribed by statute for the offense as to which he was pleading guilty, including a term of not more than twenty (20) years of imprisonment, followed by up to three (3) years of supervised released and a mandatory monetary assessment of one hundred dollars ($100.00), and a fine not to exceed two hundred and fifty thousand dollars($250,000). He was further informed that no probation or suspended sentence was allowed. He was also apprised that he may face deportation after conclusion of his sentence. These penalties were further explained by this Magistrate. However, the government and the defendant had agreed that at the time of sentencing the government would be recommending that he should be sentenced at the lower end of the range. For this reason, the defendant's Base Offense Level shall be Twenty Four (24) and after receipt of three (3) level adjustment for acceptance of responsibility, the Total Offense Level shall be Twenty One (21). If the Criminal Category is I, which has not been stipulated or accepted as such by the government, the defendant would be facing a range of imprisonment of 37-46 months.
Having ascertained directly from defendant that he had not been induced in any way to plead guilty, that no one had forced him in any way to plead guilty, nor that he had been offered any reward or any other thing of value to get him to plead guilty, the document entitled Plea Agreement (the Agreement) was shown to him, verifying his signature.
Pursuant to said Agreement, and insofar as Count One, as to which the defendant already was aware of the maximum possible penalties, defendant was apprised that it was up to the sole discretion of the sentencing court what the sentence to be imposed on him would be. Defendant was specifically informed that although the court retains the discretion to impose any sentence within the authorized Sentencing Guideline, if the sentencing court states not to approve the plea, he would not be entitled to withdraw same.
Defendant was specifically informed that the above calculations were not binding for the sentencing court, but were only estimates of possible terms of his sentence, which could always be imposed, at the sole discretion of the court, up to the maximum penalties allowed by statute, and dependent upon the information and verification thereof of the pre-sentence report that the court would have before it at the time of imposition of the sentence.
The government presented to this Magistrate and to defendant, assisted by his counsel, a summary of the basis in fact for the offense charged and the evidence the government had available to establish, in the event defendant had elected to go to trial, the commission of the offense, beyond a reasonable doubt. Defendant was able to understand this explanation and agreed with the government's submission. Defendant was also shown a written document entitled Stipulated Version of the Facts, which had been attached to the Plea Agreement, wherein the signature of defendant and his counsel, in addition to counsel for the government also appear.
The government would be able to establish that a routine interview was conducted on April 1, 2003, under the Alien Criminal Apprehension Program for the Department of Homeland Security conducted at the Bayamón Correctional Facility. Same disclosed that this defendant had been deported and removed to the Dominican Republic by an Immigration Judge at Oakdale, Louisiana, after he had been convicted of various criminal offenses, including a controlled substance violation in New Jersey back in 1989, for which defendant served four years of imprisonment. Fingerprints analysis would establish the identity of the defendant.
Defendant was explained that the plea agreement with the government does not bind any other district, except the district of Puerto Rico, and it contained all the promises, terms, and conditions which defendant, his attorney, and the government have entered.
Having once more ascertained that defendant has indicated not being induced to plead guilty, and was entering such a plea because in fact he was guilty, without any promises or predictions being made as to the sentence to be imposed by the court, defendant was informed that parole has been abolished under the applicable Sentencing Reform Act and that any sentence of imprisonment would be served, without him being released on parole. Defendant was additionally informed that prior to sentence, the sentencing judge will have a pre-sentence report and that it would be made available to him, to his counsel, and to the government, so that they be allowed to correct or object to any information contained in said report which was not accurate. Depending on the facts found by the court at the time and the sentence imposed, both defendant and the government may appeal the sentence of the court.
Defendant was shown the Indictment, provided an opportunity to see and examine same, having indicated he availed himself of the opportunity to further discuss same with his attorney and then he positively stated that what was contained in Count One therein, was what he had done and to which he was pleading guilty during these proceedings. The government provided then a summary of the evidence in its possession, which had been fully disclosed to defendant and his counsel. Thereafter defendant expressed in no uncertain terms that he agreed with said evidence as to his participation in the offense. Thereupon, defendant indicated he was pleading guilty to Count One.
This magistrate finds, that after having explained the defendant of his rights, ascertaining that he was acting freely and voluntarily to the waiver of such rights and in his decision of pleading guilty, with full knowledge of the consequences thereof, and there being a basis in fact for such a plea, it is recommended that a plea of guilty be entered as to Count One of the indictment in Criminal No. 03-0125 (HL).
The Clerk's Office informed all parties in open court that the sentence proceedings are scheduled for NOVEMBER 10, 2003, at 9:00 A.M.
IT IS SO RECOMMENDED.