Opinion
CRIMINAL NO. 00-139 (HL), CRIMINAL NO. 03-234 (CC)
October 27, 2003
REPORT AND RECOMMENDATION
Above defendant was charged in Count One of an Indictment in Criminal No. 00-139 (HL) and Counts Three and Five in Criminal No. 03-234 (CC). Those cases were consolidated and the plea agreement relates to both criminal cases.
The defendant appeared before this Magistrate on October 23, 2003, after the Motion for Change of Plea, was referred by the court. A conflict of interest hearing was held prior to the change of plea proceedings.
Defendant was provided with the Waiver of Right to Trial by Jury, which he signed and agreed upon after examination in open court, under oath. The defendant indicated and confirmed his intention to plead guilty to Count One of the Indictment in Criminal No. 00-139 (HL) and to Counts Three and Five in Criminal No. 03-234 (CC), 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 as to his competency and ability to understand the proceedings.
In Criminal No. 00-139 (HL), Count One, defendant is charged with: "knowingly, intentionally, unlawfully, and wrongfully combine, conspire, and agree with each other and with divers other persons to the grand jury unknown to commit he following offense against the United States, to wit; knowingly and intentionally distribute controlled substances, that is to say, a multi-kilogram quantity, that is in excess of five kilograms of Cocaine, an amount of not less than fifty (50) grams of Cocaine Base, both Schedule II Narcotic Drug Controlled Substance, and in excess of one kilogram of Heroin and some quantity of marihuana, both Schedule I Narcotic Drug Controlled Substance, in violation of Title 21, United States Code Section 841(a)(1), all in violation of Title 21, United States Code Section 846."
In Criminal No. 03-234 (CC), Count Three, defendant is charged with: "aided and abetted by others known or unknown, did knowingly and unlawfully posses two (2) semi-automatic assault weapons/firearms, as that term is defined in Title 18, United States Code, Section 921(a)(30), in furtherance of a drug trafficking crime", in violation to 21 U.S.C. § 5924(c)(1), et seq.
In Criminal No. 03-234 (CC), Count Five, defendant is charged with: "while under indictment, for a crime punishable by imprisonment for a term exceeding one year, did, aided and abetted by others known and unknown, knowingly and unlawfully possess in or affecting commerce any firearm or ammunition or receive any firearm or ammunition, as those terms are defined in Title 18, United States Code Sections 921(a)(3) and 921(a((17)(A)".
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 in Criminal No. 00-139 (HL) and Counts Three and Five in Criminal No. 03-234 (CC), he was 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 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. 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, Robert Odasz, 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 the term of not less than ten (10) years or more than life imprisonment, a fine not to exceed four million dollars ($4,000,000.00), and a term of supervised release of not less than five (5) years in addition to any term of incarceration, with a mandatory penalty assessment of one hundred dollars ($100), as to Count One in Criminal No. 00-139 (HL). As to Count Three of Criminal No. 03-234 (CC), there is a fixed term of imprisonment of one hundred and twenty (120) months which is to be served consecutive to any other term of imprisonment that is imposed in Count Five of such indictment or in Count One of Criminal No. 00-139 (HL). As to Count Five of Criminal No. 03-234 (CC, the term of imprisonment be not more than twenty (20) years, a fine not more than two hundred and fifty thousand dollars ($250,000.00) and a term of supervised release of at least two (2) but not more than three (3) years in addition to any term of incarceration. There is a mandatory penalty assessment of one hundred dollars ($100.00) per count.
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 and initials on each and every page.
Pursuant to said Agreement, and insofar as Count One in Criminal No. 00-139 (HL) and Counts Three and Five in Criminal No. 03-234 (CC), 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. Defendant was specifically informed that if the sentencing court were to impose a sentence which turned out to be higher or more severe than the one he might be expecting, for said reason alone, defendant would have no grounds for the court to allow him to withdraw his plea of guilty.
The above-captioned parties' estimate and agreement appear on page four, wherein the possible applicable statutory penalties are shown, which were further elaborated and explained to the defendant. It was defendant's understanding that the applicable Sentencing Guidelines, as these appear on pages seven (7) through nine (9) of the Agreement, will be the following: as to Criminal No. 00-139 (HL), the base offense level based on the stipulated amount of controlled substances of at least two (2) kilograms but less than three and a half (3.5) kilograms of cocaine, would be Twenty Eight (28). There could be a three (3) point reduction for acceptance of responsibility and an increase of three (3) point since defendant was a manager or supervisor of the criminal activity involving five or more participants. As such, the Total Adjusted Base Offense Level in such Count One would be Twenty Eight (28) for a sentencing range of 78 to 97 months of incarceration.
As to Criminal No. 03-234 (CC), Count Five, the base offense level would be Twenty (20), which shall be increased by two (2) levels because it involved three (3) firearms and an additional two (2) level increase because one of the firearms was stolen. Because defendant possessed the firearm in connection with another felony offense, there would be an increase of four (4) levels. These will be reduced by three level for acceptance of responsibility, for a Total Adjusted Offense Level of Twenty Five (25), with a the range of incarceration of 57 to 71 months. The parties have agreed to recommend a sentence of seventy one (71) months of imprisonment, for these terms to run concurrently as to Count One of Criminal No. 00-139 (HL) and Count Five in Criminal 03-234 (CC), and consecutive with the mandatory term of One Hundred and Twenty Months (120) of Count Three in Criminal No. 03-234 (CC), for a total sentence, as to both cases, of ONE HUNDRED AND NINETY EIGHT (198) months.
There is no safety valve adjustment within the provisions of Sentencing Guidelines Section 5C1.2 applicable to this defendant. The government will request dismissal of the remaining counts of both Indictments (Criminal No. 00-139 (HL) and Criminal No. 03-234 (CC)) at the time of sentence.
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 Government's Version of the Facts, which had been signed by the defendant and his counsel and is attached to the Plea Agreement, wherein the signature of counsel for the government also appears.
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 Indictments, 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 of Criminal No. 00-139 (HL) and Counts Three and Five in Criminal No. 03-234 (CC), 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, discussed between the two, and 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 in Criminal No. 00-139 (HL) and Counts Three and Five in Criminal No. 03-234 (CC).
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 above pleaded counts.
IT IS SO RECOMMENDED.
The parties were informed that sentence has been scheduled for JANUARY 15, 2004, at 9:00 A.M. before Honorable Chief Judge Laffitte.