Opinion
CRIMINAL NO. 02-214 (SEC)
June 25, 2003
Lynn Doble Salicrup, AUSA, U.S. Attorney's Office, Hato Rey, PR, Counselors for Plaintiff's
Epifanio Morales, AFPD, Public Defender's Office, Hato Rey, PR, Counselers for Defendant's
REPORT AND RECOMMENDATION
Above defendant was charged in Count One of a Superseding Indictment wherein stated that "did knowingly, intentionally, and unlawfully combine, conspire, confederate, and agree together and with each other" to commit an offense defined in Title 21, United States Code, Section 841(a)(1) and 846. That is "to possess with intent to distribute multi-kilogram quantities of controlled substances, that is, in excess of one (1) kilogram of heroin, a Schedule I, Narcotic Drug Controlled Substance, and in excess of five (5) kilograms of cocaine, a Schedule II, Narcotic Drug Controlled Substance."
As part of the Plea Agreement, both parties have stipulated that the defendant is to be held accountable for an amount of at least ten (10) grams but less than twelve (12) grams of heroin.
The defendant appeared before this Magistrate on May 25, 2003. Defendant was provided with the Consent to Proceed Before a United States Magistrate Judge in a Felony Case: For Pleading guilty and Waiver of Jury Trial, which he signed and agreed upon voluntarily after examination in open court, under oath. The defendant indicated and confirmed his intention to plead guilty to Count One of the Superseding 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 as to his competency and his ability to understand these 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 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 Superseding 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, 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 imprisonment which shall not be less than ten (10) years to life, a fine not to exceed four million dollars ($4,000,000.00), and a term of supervised release of at least five (5) years in addition to any term of incarceration. The Court must also impose a mandatory penalty assessment of one hundred dollars ($100.00) per offense, to be deposited in the Crime Victim Fund, pursuant to Title 18, United States Code, Section 3013. The government informed that defendant already paid this mandatory penalty assessment.
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) pursuant to Rule 11(c)(1)(A) and (B) of the Federal Rules of Criminal Procedure was shown to him, verifying his signature and initials on each and every page.
Pursuant to said Agreement, 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 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 appear on page three and four, paragraph seven of the Agreement, regarding the possible applicable Sentencing Guidelines. These were further elaborated and explained. It was defendant's understanding that "the base offense level" for possession with intent to distribute more than ten (10) grams but less than twelve (12) grams of heroin is level SIXTEEN (16), pursuant to U.S.S.G. § 2D1.1 (c)(6). Defendant's role in the offense as a minor participant reduces his base offense level by TWO (2), pursuant to U.S.S.G. § 3B1.2 (b). Should the defendant clearly demonstrate acceptance of responsibility for the offense, defendant's base offense level shall be reduced by THREE (3) levels, pursuant to U.S.S.G. § 3E1.1 (a). Based on the guideline sentencing factors listed above, the TOTAL ADJUSTED OFFENSE LEVEL shall be ELEVEN (11)." The imprisonment range in months will be 8-14.
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 offenses charged and the evidence the government had available to establish, in the event defendant had elected to go to trial, the commission of the offenses, 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 Statement of 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 and counsel have been provided with all discovery required in relation to the above.
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 that he 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 presentence 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.
Defendant was shown the Superseding 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, 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.
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.
Defendant has no pending proceedings before the Immigration and Naturalization Services, nor this case is linked to any other case before this Court.
IT IS SO RECOMMENDED.
The sentencing hearing to be imposed by the Court in a future date.