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United States v. Kantz

United States District Court, Fourth Circuit

January 28, 2014

UNITED STATES OF AMERICA,
v.
STEPHANIE JORDAN KANTZ, Defendant

REPORT AND RECOMMENDATION

James G. Welsh U.S. Magistrate Judge

In accordance with the provisions of Title 28 U.S.C. § 636(b)(3) and upon the defendant’s informed and written consent, this case was referred to the undersigned for the purpose of conducting a plea hearing.

As set forth in more detail in the Superseding Indictment (docket #35), the Grand Jury previously returned a multiple count Superseding Indictment charging the above-named defendant in Count One that beginning on a date unknown to the Grand Jury, but on or around October 2, 2013 and continuing to on or about October 22, 2013, in the Western Judicial District of Virginia and elsewhere, she knowingly and willfully conspired and agreed together, and with others known and unknown to the grand jury to commit the following offenses against the United States: (a) to possess five or more identification documents that were not issued for the use of this defendant, that appear to be issued by and under the authority of the United States, and affects interstate and foreign commerce, with the intent unlawfully to use them in violation of 18 U.S.C. § 1028(a)(3); and (b) to possess without lawful authority a means of identification of another person, that appears to be issued by or under the authority of the United States, and affects interstate or foreign commerce, with the intent to commit a violation of federal law, or a felony under state or local law in violation of 18 U.S.C. § 1028(a)(7); all in violation of 18 U.S.C. § 371; charging the above-named defendant in Count Two that beginning on a date unknown to the Grand Jury, but on or around October 2, 2013 and continuing to on or about October 22, 2013, in the Western Judicial District of Virginia and elsewhere, she knowingly conspired and agreed together, and with others known and unknown to the grand jury to commit the following offenses against the United States: (a) with the intent to defraud, to use access devices the defendants were not authorized to use, through which the defendants obtained items valued at $1, 000 or more, within a one year time period ending October 22, 2013, in violation of 18 U.S.C. § 1029(a)(2); and (b) with the intent to defraud, to use access devices that had been issued to persons other than themselves for transactions during a one year time period ending October 22, 2013, and in doing so obtained items valued at $1, 000 or more in violation of 18 U.S.C. § 1029(a)(5); all in violation of 18 U.S.C. § 1029(b)(2); charging the above-named defendant in Count Three that on or about October 22, 2013, in the Western Judicial District of Virginia and elsewhere, she did knowingly possess, without lawful authority, a means of identification of certain other persons, during and in relation to violations of 18 U.S.C. §§ 1029(a)(2), 1029(a)(5) and 1029(b)(2); in violation of 18 U.S.C. §§ 1028A(a)(1) and 1028A(c)(4); charging the above-named defendant in Count Four with identification document fraud in violation of 18 U.S.C. §§ 1028(a)(3) and 2; charging the above-named defendant in Count Five with aggravated identity theft during and in relation to violations of 18 U.S.C. § 1028(a)(3), in violation of 18 U.S.C. §§ 1028A(a)(1) and 1028A(c)(4); charging the above-named defendant in Count Six with identity theft with intent to commit access device fraud in violation of 18 U.S.C. § 1029 and obtaining as a result items valued at $1, 000.00 or more in the previous one year; all in violation of 18 U.S.C. §§ 1028(a)(7) and 2; charging the above-named defendant in Count Seven with credit card fraud in violation of 18 U.S.C. §§ 1029(a)(3), 1029(c)(1)(A)(i) and 2; and charging the above-named defendant in Count Eight with aggravated identity theft during and in relation to violations of 18 U.S.C. § 12029(a)(3); in violation of 18 U.S.C. §§ 1028A(a)(1) and 1028A(c)(4). In addition, the Superseding Indictment contains a Notice of Forfeiture apprising the above-named defendant that certain of her property is subject to forfeiture upon conviction of any one or more of the offenses alleged against her.

In accordance with the provisions of Title 28 U.S.C. ยง 636(b) a plea hearing was conducted before the underDated: January 23, 2014. The proceeding was recorded by a court reporter. See Rule 11(g). The United States was represented by Drew Smith, Assistant United States Attorney. The defendant was at all times present in person and with her counsel, Joel C. Hoppe, Assistant Federal Public Defender.

After the defendant was placed under oath, she stated that she understood her obligation to testify truthfully in all respects under penalty of perjury, and she understood the government's right in a prosecution for perjury or false statement to use against her any statement that she gives under oath. See Rule 11(b)(1)(A). The defendant then testified that her name is STEPHANIE JORDAN KANTZ; she is twenty-one (21) years of age, and she has a high school equivalent education. She represented that she can read, write and understand the English language without difficulty, that she has no medical condition, either physical or mental, which might interfere with her ability to understand and participate fully in the proceeding, that she is using no medication or drugs which might impair her ability to understand and participate in the proceeding, and that her mind is clear. The defendant's attorney then stated that he had no reservations about his client's competency to plead guilty to certain of the charges contained in the multi-count Superseding Indictment.

DEFENDANT'S RESPONSES TO RULE 11 ENQUIRIES

The defendant acknowledged that she had received a copy of the Superseding Indictment and fully understood the charges against her. She acknowledged that she was under oath and was obligated to testify truthfully in all respects under penalty of perjury and she understood the government’s right in a prosecution for perjury or false statement to use against her any statement that she gives under oath. See Rule 11(b)(1)(A). She stated that she had discussed the charges with her attorney and had been given enough time to do so. She stated that she understood the nature of the charges against her the Superseding Indictment, and she specifically understood each count charged a felony offense. See Rule 11(b)(1)(G). She testified that she had discussed any possible defenses with her attorney and that she had been given adequate time to prepare any defenses she might have to the charges. She stated that her decision to enter pleas of guilty to three of the charges had been made after consulting with her attorney and that she was fully satisfied with the services of her attorney.

She next stated that she understood she was in court for the purpose of entering pleas of guilty to three felony offenses which she could not later withdraw. Upon inquiry, the defendant's attorney represented that he had no reservations about the defendant's competency to enter pleas of guilty to the felony offenses charged in Counts One, Two and Three of the Superseding Indictment.

The defendant confirmed that she fully recognized and understood her right to have the Rule 11 hearing conducted by a United States district judge, and she gave her verbal and written consent to proceed with the hearing before the undersigned United States magistrate judge. The defendant's written consent was filed and made a part of the record.

Counsel for both parties having previously informed the court that the defendant's proposed pleas were to be made pursuant to a written plea agreement (see Rule 11(c)(2)), counsel for the government then set forth the government's understanding of the plea agreement in some detail: including the agreement of the defendant to plead guilty to three of the charges alleged against her in the Superseding Indictment [¶A.1.]; the defendant's express acknowledgment that the maximum statutory penalty for the offense charged in Count One is a fine of $250, 000.00, a five year term of imprisonment, and a five year term of supervised release [Id.]; her express acknowledgment that the maximum statutory penalty for the offense charged in Count Two is a fine of $250, 000.00, a seven and one-half year term of imprisonment, and a three year term of supervised release [Id. .]; her express acknowledgment that the mandatory penalty for the offense charged in Count Three is a two year term of imprisonment and that the maximum statutory also includes a fine of $250, 000.00 and two year term of supervised release [Id.]; her acknowledgment that she may be required to pay restitution and that her assets may be subject to forfeiture [¶A.1. and B.4.a.]; her express admission of her factual guilt to the offenses charged in Counts One, Two and Three [¶A.1.]; the defendant's obligation to pay a $300.00 special assessment prior to entry of her guilty plea and the related restitution and assessment provision [¶¶A.1. and B.4.a.]; the defendant's acknowledgment of the trial rights waived by entry of a voluntary plea of guilty [¶A.2.]; the agreement's provision outlining the fact that sentencing is within the sole discretion of the court “subject to its consideration" of the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a) [¶B.1.]; the defendant's express recognition that she would not be allowed to withdraw her guilty pleas irrespective of the sentence imposed by the court [B.1.]; the defendant’s express acknowledgment that she would not be eligible for parole during any term of incarceration [¶ B.1.]; the defendant's stipulation that all matters pertaining to any of the counts of the charging document are relevant sentencing conduct [¶B.2]; the parties' express agreement that the 2013 edition of the Sentencing Guidelines applies to the defendant’s conduct, that a base offense level of 6 is applicable pursuant to guideline section 2B1.1(a)(2), that a offense level (more than $70, 000 loss) is applicable pursuant to guideline section 2B1.1(b)(1)(E) and that a offense level (more than 10 victims) is also applicable pursuant to guideline section 2B1.1(b)(2)(A) [¶B.2.]; the defendant’s express acknowledgment of the government’s intention to object to any sentence below the guideline range [¶B.1.]; the terms of the agreement’s acceptance of responsibility provision [¶B.2.]; the terms of the agreement’s substantial assistance provision [¶B.3.]; the defendant's monetary and related obligations, including the terms of her obligation to pay a mandatory assessment of $300.00 and to pay restitution of the entire scope of her criminal conduct [¶B.4.a.]; the terms of the defendant’s financial disclosure obligations [¶ B.4.b.]; the terms of the parties’ asset forfeiture agreement [¶C.]; the scope of the defendant's express waiver of her right of direct appeal [¶D.1.]; the scope of the defendant's express waiver of her right to make any collateral attack on any judgment or sentence imposed by the court [¶D.2.]; the defendant’s waiver without limitation of any right to access any records pertaining to the investigation or prosecution of this case [¶D.3.]; the defendant's abandonment of any seized property [¶ D.5.]; the defendant’s various additional duties [¶D.8.]; the remedies available to the government in the event of a breach of the agreement by the defendant [¶ E.]; the defendant's acknowledgment that she had been effectively represented in this case [¶ F.3.]; the parties express acknowledgment that the written plea agreement constituted the entire understanding between the parties and that it did not apply to any crimes or charges not addressed in the agreement [¶F.2.]; the likelihood that the defendant will receive a substantial term of imprisonment [¶F.5.]; and the substance of the agreement's other terms and provisions. See Rule 11(b)(1)(B)-(N) and 11(c)(1)-(3).

After which, the defendant was asked what her understanding of the terms of the agreement was, and she testified that her understanding was precisely the same as that set forth by the government's attorney. Counsel for the defendant, likewise, represented that his understanding was the same; he further represented that each of its terms had been reviewed with the defendant, and he stated that he was satisfied that the defendant understood all of its terms.

The defendant was then shown the plea agreement, and she affirmed it to be her signature on the document. She further testified that no one had made any other, different or additional promise or assurance of any kind in an effort to induce her to enter a plea of guilty and that no one had attempted in any way to force her to plead guilty in this case. The agreement was then received, filed and made a part of the record, and it was noted for the record that the written plea agreement constitutes the best evidence of its terms, and as such it speaks for “itself.” After the range of punishment for the offenses charged in Counts One, Two and Three of the Superseding Indictment had been outlined to the defendant, she acknowledged that she understood the maximum statutory penalty proved by law for conviction of the offense alleged in Count One is a fine of $250, 000.00, a five year term of imprisonment, and a five year term of supervised release; that she understood the maximum statutory penalty for the offense charged in Count Two is a fine of $250, 000.00, a seven and one-half year term of imprisonment, and a three year term of supervised release; and that she understood the mandatory penalty for the offense charged in Count Three is a two year term of imprisonment and that the maximum statutory also includes a fine of $250, 000.00 and two year term of supervised release. See Rule 11(b)(H)-(I). In addition, the defendant re-acknowledged that she understood that she would be required to pay a mandatory $300.00 special assessment. See Rule 11(b)(1)(L).

The defendant then acknowledged that she knew her plea, if accepted, would result in her being adjudged guilty of three felony offenses and that such adjudication may deprive her of valuable civil rights, such as the right to vote, the right to hold public office, the right to serve on a jury and the right to possess any kind of firearm.

The defendant was informed, and she expressly acknowledged, that the court's determination of her sentence would include consideration of multiple factors, including: the nature and circumstances of the offense; the defendant's history and characteristics; the seriousness of the offense; the need to promote respect for the law; the need to provide for just punishment and afford adequate deterrence; the need to protect the public; any determined need to provide the defendant with educational or vocational training, medical care or other correctional treatment in the most efficient manner; the kinds of available sentences; the pertinent sentencing guidelines and policy statements; the need to avoid unwanted sentence disparities; and any need to provide for restitution. She also acknowledged that she ...


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