Opinion
Criminal Action No. 1:07CR41.
August 2, 2007
REPORT AND RECOMMENDATION/OPINION
This matter has been referred to the undersigned Magistrate Judge by the District Court for purposes of conducting proceedings pursuant to Federal Rule of Criminal Procedure 11. Defendant, Darnell L. Washington, in person and by counsel, James B. Zimarowski, appeared before me on August 1, 2007. The Government appeared by David E. Godwin, its Assistant United States Attorney.
Thereupon, the Court proceeded with the Rule 11 proceeding by asking Defendant's counsel what Defendant's anticipated plea would be. Counsel responded that Defendant would enter a plea of "Guilty" to Count Three of the Indictment.
Thereupon, the Court proceeded with the Rule 11 proceeding by first placing Defendant under oath, and thereafter inquiring of Defendant concerning his understanding of his right to have an Article III Judge hear the entry of his guilty plea and his understanding of the difference between an Article III Judge and a Magistrate Judge. Defendant thereafter stated in open court that he voluntarily waived his right to have an Article III Judge hear his plea and voluntarily consented to the undersigned Magistrate Judge hearing his plea, and tendered to the Court a written Waiver of Article III Judge and Consent To Enter Guilty Plea Before Magistrate Judge, which waiver and consent was signed by Defendant and countersigned by Defendant's counsel and was concurred in by the signature of the Assistant United States Attorney appearing.
Upon consideration of the sworn testimony of Defendant, as well as the representations of his counsel and the representations of the Government, the Court finds that the oral and written waiver of Article III Judge and consent to enter guilty plea before a Magistrate Judge was freely and voluntarily given and the written waiver and consent was freely and voluntarily executed by Defendant, Darnell L. Washington, only after having had his rights fully explained to him and having a full understanding of those rights through consultation with his counsel, as well as through questioning by the Court. The Court ORDERED the written Waiver and Consent to Enter Guilty Plea before a Magistrate Judge filed and made part of the record.
The Court then determined that Defendant's plea was pursuant to a written plea agreement, and asked the Government to tender the original to the Court. The Court then asked counsel for the Government to summarize the written Plea Agreement. Defendant then stated that the Government's summary of the Plea Agreement was correct. The Court ORDERED the written Plea Agreement filed.
The undersigned then inquired of Defendant regarding his understanding of the written plea agreement. Defendant stated he understood the terms of the written plea agreement and also stated that it contained the whole of his agreement with the Government and no promises or representations were made to him by the Government other than those terms contained in the written plea agreement.
The undersigned then reviewed with Defendant Count Three of the Indictment, the statutory penalties applicable to an individual adjudicated guilty of the felony charge contained in Count Three of the Indictment, the impact of the sentencing guidelines on sentencing in general, and inquired of Defendant as to his competency to proceed with the plea hearing. From said review the undersigned Magistrate Judge determined Defendant understood the nature of the charge pending against him and understood the possible statutory maximum sentence which could be imposed upon his conviction or adjudication of guilty on that charge was imprisonment for a term of not less than one (1) nor more than forty (40) years; understood the maximum fine that could be imposed was $2,000,000.00; understood that both fine and imprisonment could be imposed; understood he would be subject to a period of at least six (6) years of supervised release; and understood the Court would impose a special mandatory assessment of $100.00 for the felony conviction payable on or before the date of sentencing. He also understood he might be required by the Court to pay the costs of his incarceration and supervised release.
Defendant also understood that his actual sentence could not be calculated until after a presentence report was prepared and a sentencing hearing conducted. The undersigned also advised, and Defendant stated that he understood, that the Sentencing Guidelines are no longer mandatory.
The undersigned Magistrate Judge further examined Defendant relative to his knowledgeable and voluntary execution of the written plea bargain agreement dated June 19, 2007, and signed by him on July 18, 2007, and determined the entry into said written plea bargain agreement was both knowledgeable and voluntary on the part of Defendant.
The undersigned Magistrate Judge further inquired of Defendant, his counsel, and the Government as to the non-binding recommendations contained in the written plea bargain agreement and determined that Defendant understood, with respect to the plea bargain agreement and to Defendant's entry of a plea of guilty to the felony charge contained in Count Three of the Indictment, the undersigned Magistrate Judge would write the subject Report and Recommendation and tender the same to the District Court Judge, and the undersigned would further order a presentence investigation report be prepared by the probation officer attending the District Court, and only after the District Court had an opportunity to review the subject Report and Recommendation, as well as the pre-sentence investigation report, would the District Court make a determination as to whether to accept or reject Defendant's plea of guilty or any recommendation contained within the plea agreement or pre-sentence report. The undersigned reiterated to the Defendant that the District Judge may not agree with the recommendations contained in the written agreement.
The undersigned then addressed the parties' stipulation, which states:
Pursuant to §§ 6B 1.4, 1B1.3, and § 2D1.1 [Application Note 12] ofthe Guidelines, the parties hereby stipulate and agree that the total drug relevant conduct of the defendant with regard to the Indictment is not less than 1 gram nor more than 2 grams of cocaine base.
The undersigned advised, and the parties understood, that the Court is not bound by the foregoing stipulation and is not required to accept same. The parties further understood and agreed that should the Court not accept the above stipulation, Defendant would not have the right to withdraw his plea of guilty.
The undersigned Magistrate Judge further advised Defendant, in accord with Federal Rule of Criminal Procedure 11, in the event the District Court Judge rejected Defendant's plea of guilty, Defendant would be permitted to withdraw his plea and proceed to trial. However, Defendant was further advised if the District Court Judge accepted his plea of guilty to the felony charge contained in Count Three of the Indictment, Defendant would not be permitted to withdraw his guilty plea even if the Judge refused to follow the non-binding recommendations and stipulation contained in the written plea agreement and/or sentenced him to a sentence which was different from that which he expected. Defendant and his counsel each acknowledged their understanding and Defendant maintained his desire to have his plea of guilty accepted.
The undersigned Magistrate Judge further examined Defendant with regard to his understanding of the impact of his conditional waiver of his appellate rights as contained in the written plea agreement, and determined he understood those rights and voluntarily gave them up pursuant to the condition stated in the written plea agreement.
The undersigned Magistrate Judge further cautioned and examined Defendant under oath concerning all matters mentioned in Rule 11.
The undersigned then reviewed with Defendant Count Three of the Indictment, including the elements the United States would have to prove at trial, charging him with aiding and abetting in the distribution of cocaine base within 1000' of a playground in violation of Title 21, United States Code, §§ 841(a)(1), 841(b)(1)(C), and 860, and Title 18, United States Code, § 2.
The Court then received the sworn testimony of Robert Timothy Ankrom and Defendant's allocution as to why he believed he was guilty of the offense charged in Count Three of the Indictment. Tim Ankrom testified that he is a Deputy with the Harrison County Sheriff's Department, assigned to the Harrison/Lewis County Drug and Violent Crimes Task Force. He was involved in the investigation of a series of cases involving the sale of crack cocaine taking place at 1112 E. Main Street Clarksburg, Harrison County, West Virginia. That residence was known as what is commonly called a "crack house." On January 22, 2007, the drug task force utilized a confidential informant to make a controlled purchase of crack cocaine. The confidential informant was driven to the residence and was allowed in. He met with Defendant, with whom he conversed briefly. Defendant then went with another defendant, Anthony Lee, into a back room. When they returned, Defendant sat on a couch while Lee completed the deal. The confidential informant left with the drugs, which he then turned over to the officers. The drugs were turned over to the West Virginia State Police Laboratory, which confirmed them to be 1.37 grams of cocaine base. The transaction took place within 1000' of the Broadway Playground, as determined on an Engineering Survey which shows a 1000' radius of protected areas. The playground was open to the public and contained a basketball court, slides, climbing apparatus, and two swing sets.
The drugs were analyzed by the West Virginia State Police Laboratory, which confirmed them to consist of 1.37 grams of cocaine base.
The defendant stated he had heard, understood, and agreed with all the facts in Deputy Ankrom's testimony. Thereupon, Defendant, Darnell L. Washington, with the consent of his counsel, James B. Zimarowski, proceeded to enter a verbal plea of GUILTY to the felony charge contained in Count Three of the Indictment. Defendant then stated he believed he was guilty of the offense charged in Count Three of the Indictment because he was there, he took the money from the CI, and "they" transferred the crack. The events all took place where Deputy Ankrom testified they did.
From the testimony of Deputy Ankrom, the undersigned Magistrate Judge concludes the offense charged in Count Three of the Indictment is supported by an independent basis in fact concerning each of the essential elements of such offense. This conclusion is supported by Defendant's under-oath in-court statement.
Upon consideration of all of the above, the undersigned Magistrate Judge finds that Defendant is fully competent and capable of entering an informed plea; Defendant is aware of and understood his right to have an Article III Judge hear his plea and elected to voluntarily consent to the undersigned United States Magistrate Judge hearing his plea; Defendant understood the charges against him, not only as to the Indictment as a whole, but in particular as to Count Three of the Indictment; Defendant understood the consequences of his plea of guilty; Defendant made a knowing and voluntary plea; and Defendant's plea is supported by the testimony of Deputy Ankrom as well as Defendant's own under-oath statement.
The undersigned Magistrate Judge therefore RECOMMENDS Defendant's plea of guilty to the felony charge contained Count Three of the Indictment herein be accepted conditioned upon the Court's receipt and review of this Report and Recommendation and a Pre-Sentence Investigation Report, and that the Defendant be adjudged guilty on said charge as contained in Count Three of the Indictment and have sentence imposed accordingly.
The undersigned further directs that a pre-sentence investigation report be prepared by the adult probation officer assigned to this case.
Any party may, within ten (10) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, Chief United States District Judge. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to send a copy of this Report and Recommendation to counsel of record.