United States District Court, Western District of Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
Hon. 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 Third Superseding Indictment (docket #161), the Grand Jury previously returned a multiple count, multiple defendant, Third Superseding Indictment charging the above-named defendant in Count One that beginning on a date unknown to the Grand Jury, but no later than Spring of 2008 and continuing to on or about March 1, 2011, in the Western Judicial District of Virginia and elsewhere, he and others known and unknown to the grand jury, combined, conspired, and agreed with other persons to distribute a mixture and substance containing a detectable amount of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), All in violation of 21 U.S.C. § 846. In addition, the Third Superseding Indictment contains a Notice of Forfeiture apprising the above- named defendant that certain of his property is subject to forfeiture upon conviction of the offense alleged against him.
In accordance with the provisions of Title 28 U.S.C. ' 636(b) a plea hearing was conducted before the under Dated: September 15, 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 his counsel, Sherwin Jacobs.
After the defendant was placed under oath, he stated that he understood his obligation to testify truthfully in all respects under penalty of perjury, and he understood the government's right in a prosecution for perjury or false statement to use against him any statement that he gives under oath. See Rule 11(b)(1)(A). The defendant then testified that his name is ERNEST RANDAL FITZERALD; he is fifty-one (51) years of age, and he has an eleventh grade education. He represented that he can read, write and understand the English language without difficulty, that he has no medical condition, either physical or mental, which might interfere with his ability to understand and participate fully in the proceeding, that he is using no medication or drugs which might impair his ability to understand and participate in the proceeding, and that his mind is clear. The defendant's attorney then stated that he had no reservations about his client's competency to plead guilty to a certain charge contained in the multi-count Third Superseding Indictment.
DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES
The defendant acknowledged that he had received a copy of the Third Superseding Indictment and fully understood the charge against him. He stated that he had discussed the charge with his attorney and had been given enough time to do so. He stated that he understood the nature of the charge against him in the Third Superseding Indictment, and he specifically understood it charged him with a felony offense. See Rule 11(b)(1)(G). He testified that he had discussed with his attorney the offense elements which must be proven by the government beyond a reasonable doubt and any possible defenses he might have. He stated that he had been given adequate time to prepare any defenses he might have to the charges. He stated that his decision to enter a plea of guilty to the substantive offense charged in Count One of the Third Superseding Indictment had been made after consulting with his attorney and that he was fully satisfied with the services of his attorney.
He next stated that he understood he was in court for the purpose of entering a plea of guilty to a felony offense pursuant to the express terms of the plea agreement. Upon inquiry, the defendant's attorney represented that he had no reservations about the defendant's competency to enter a plea of guilty to an offense in accordance with the terms of the plea agreement.
The defendant confirmed that he fully recognized and understood his right to have the Rule 11 hearing conducted by a United States district judge, and he gave his 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 plea was 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 the charge of “distributing and to possessing with the intent to distribute, a quantity of a mixture and substance containing a detectable amount of marijuana, a scheduled I controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C).” alleged against him in the Third Superseding Indictment [¶ A.1.]; the defendant's express acknowledgment that the maximum statutory penalty for the substantive offense charged in Count One (possession with intent to distribute substance containing a detectable amount of marijuana) is a fine of $1, 000, 000.00, a twenty (20) year term of imprisonment, and a maximum term of supervised release of five years [Id]; his express admission of his factual guilt to the substantive offense charged in Count One and his obligation to pay a $100.00 special assessment 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 sentencing-related provisions, including the defendant’s acknowledgment that sentencing is within the sole discretion of the court A subject to its consideration" of the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a), the defendant's express recognition that he would not be allowed to withdraw his guilty plea even if the court disregards the plea agreement’s stipulations and recommendations, the defendant’s acknowledgment that he would not be eligible for parole during any term of incarceration and that there is a substantial likelihood he will be incarcerated, the parties’ agreement that the 2013 edition of the guidelines manual applies to the offense, the parties’ agreement concerning the sentencing impact of the Sentencing Commission’s proposed amendment to the Drug Quantity Table (U.S.S.G. § 2D1.1), the acceptance of responsibility provision, and the substantial assistance provision [¶ ¶B.1.-B.3.]; the defendant's monetary and related obligations, including inter alia the terms of his obligation to pay a mandatory assessment of $100.00, his obligation to pay restitution of the entire scope of his criminal conduct, the terms of the defendant’s agreement to consent to a $25, 000.00 asset forfeiture, and the terms of the defendant’s various restitution, collection and forfeiture-related obligations [¶B.4, and ¶C.]; the scope of the defendant's express waiver of his right of direct appeal [¶ D.1.]; the scope of the defendant's express waiver of his 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 acknowledgement that in the event he is a non-citizen he may be subject to deportation, the denial of citizenship and the denied future admission to the United States (see Rule 11(b)(O)) [¶D.6.]; the defendant’s stipulation of the admissibility and waiver of any constitutional or other legal protections related to any statements previously made by him in any setting in the event he withdraws his pleas of guilty [¶D.7.]; the defendant’s various additional obligations [¶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 he 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 agreement’s provision pertaining to the defendant’s waiver of any misconduct claims [¶F.4.]; the defendant’s stipulation that there is a sufficient factual basis to support the elements of the offense to which he is pleading guilty [¶F.5.]; and the substance of the agreement's other terms and provisions. See Rule 11(b)(1)(B)-(O) and 11(c)(1)-(3).
After which, the defendant was asked whether his understanding of the terms of the agreement was different in any way from that outlined by the attorney for the government, and he testified that his 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 he affirmed it to be his signature on the document. He further testified that no one had made any other, different or additional promise or assurance of any kind in an effort to induce him to enter a plea of guilty and that no one had attempted in any way to force him 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 Aspeaks for itself.@ After the range of punishment for the substantive offense charged in Count One of the Third Superseding Indictment had been outlined to the defendant, he acknowledged that he understood the maximum statutory penalty proved by law for conviction of the offense is a fine of $1000, 000.00, a twenty (20) year term of imprisonment, and a five year term of supervised release. See Rule 11(b)(1)(H)-(I). In addition, the defendant re-acknowledged that he understood that he would be required to pay a mandatory $100.00 special assessment. See Rule 11(b)(1)(L).
The defendant then acknowledged that he knew his plea, if accepted, would result in him being adjudged guilty of a felony offense and that such adjudication may deprive him 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 he expressly acknowledged, that the court's determination of his 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 offenses; 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. He also acknowledged that he understood the court may order him to make full restitution to any victim and, if accepted, the plea agreement required entry of a $25, 000.00 forfeiture judgment. See Rule 11(b)(1)(J)B(K). Additionally, the defendant acknowledged that he understood his entry of a guilty plea pursuant to the terms of the plea agreement he may be waiving any right he might have to appeal ...