United States District Court, W.D. Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
JAMES G. WELSH, 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 Indictment (docket #3), the Grand Jury previously returned a multiple count, multiple defendant, Indictment charging the above-named defendant in Count One that beginning on a date unknown to the Grand Jury, but on or around January 1, 2001 and continuing until the present, in the Western Judicial District of Virginia and elsewhere, this defendant and others known and unknown to the grand jury, conspired, to commit the following offenses against the United States to: (a) distribute and to possess with intent to distribute a quantity of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c), and to distribute and possess with intent to distribute a quantity of a mixture and substance containing a detect able amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c), and as to this defendant and certain others, the conspiracy was further alleged to have as its object the distribution and possession with the intention to distribute, 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); all in violation of 21 U.S.C. § 846; and charging in Count Six that on or about November 16, 2012 this defendant did knowingly and intentionally distribute or possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). In addition, the 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 undersigned on September 11, 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, Edwardo Balarezo. Also present was a properly qualified Spanish language interpreter for the defendant. See Rule 28.
With the defendant's informed and written consent, the undersigned made a Rule 11 inquiry; the government presented a written proffer of evidence for the purpose of establishing an independent basis for the plea, and the defendant entered a plea of guilty to the felony offense charged in Count One of the Indictment.
DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES
The defendant was placed under oath and addressed personally in open court. He expressly acknowledged that he was obligated to testify truthfully in all respects under penalty of perjury and that 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 testified to the following personal facts: his full legal name is LUIS RICARDO QUINONES RODRIGUEZ; he is twenty-eight (28) years of age, and he has a high school education. His ability to read and understand English is somewhat limited; however, with the assistance of the Spanish language interpreter he testified that he was fully able to understand and participate in the proceedings. He testified that he had no medical condition, either physical or mental, which might interfere with his ability to understand and to participate fully in the proceeding; he stated he was using no alcoholic beverage, medication or drugs which might impair his ability to participate fully in the proceeding and that his mind was clear. He stated that he understood he was in court for the purpose of entering a plea of guilty to a felony offense which he could not later withdraw. Upon inquiry, the defendant's attorney represented that he had no reservations about the defendant's competency to a enter plea of guilty to the charged felony offense set forth in Count One.
The defendant acknowledged that he had received a copy of the Indictment and that it had been fully translated and explained to him. He stated that he had discussed the charges with his attorney and had been given enough time to do so. He stated that he understood the nature of the charges against him in the Indictment and specifically understood each charged a felony offense. See Rule 11(b)(1)(G). He testified that he had discussed any possible defenses with his attorney and 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 Count One had been made after consulting with his attorney. He stated he was fully satisfied with the services of his attorney, and it was his intention and desire to enter a plea of guilty to Count One pursuant to 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 the 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 set forth the government's understanding of the plea agreement in some detail:
including the agreement for the defendant to plead guilty to Count One of the Indictment charging him with distributing and possessing with the intention to distribute a quantity of a mixture and substance containing a detectable amount of methamphetamine as well as distributing and possessing with the intention to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, both Schedule II controlled substances, in violation of 21 U.S.C. §§ §§ 846 and 841(b)(1)(A) [¶ A.1.]; the defendant's express acknowledgment of the maximum statutory penalty for the offense charged in Count One [¶ A.1.]; the defendant's acknowledgement that there is a mandatory minimum sentence of imprisonment for a term of ten (10 years [¶ A.1.]; the defendant's understanding that he may be required to pay fees for his incarceration and supervised release, that he may be required to pay restitution, and that his assets may be subject to forfeiture [¶¶ A.1. and B.5.]; the defendant's admission of his factual guilt to the offense charged in the Indictment [¶ A.1.]; the defendant's various monetary obligations, including payment of a $100.00 special assessment and the related restitution and assessment provisions [¶¶ A.1 and B.5.a.]; the defendant's express acknowledgment of the trial rights waived by entry of a voluntary plea of guilty [¶ A.2.]; the terms of the government's obligation to dismiss as to this defendant any remaining counts at the time of sentencing [¶ A.3.]; 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 he would not be allowed to withdraw his guilty plea irrespective of the sentence imposed by the court [¶ 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' stipulation that the 2013 edition of the USSG Manual applies to the defendant's offenses and that guideline sections 2D1.1(c)(1) and 3B1.1(a) are applicable to any guideline calculation made of the defendant's conduct [¶ B.2.]; the acceptance of responsibility provision [¶ B.2.]; the substantial assistance provision [¶ B.3.]; the inapplicability of the 18 U.S.C. § 3553(f) "safety valve" provision [¶ B.4.]; the defendant's financial disclosure obligation [¶ B.5.b.]; the terms of the defendant's express relinquishment of his waivable rights of direct appeal [¶ C.1.]; the terms of the defendant's express relinquishment of his waivable rights to make any collateral attack on any judgment or sentence imposed by the court [¶ C.2.]; the defendant's abandonment of any seized property [¶ C.5.]; the defendant's waiver of all rights to access of investigation or prosecution records or information [¶ C.3.]; the defendant's acknowledgment that in the event he is a non-citizen he may be subject to deportation as a result of his conviction of the offense charged in the Indictment [C.6.]; the defendant's acknowledgment that he had been effectively represented in this case [¶ E.3.]; the parties express acknowledgment that the written plea agreement constituted the entire understanding between the parties [¶ E.2.]; 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 what his understanding of the terms of the agreement was, 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, and he further represented that the plea agreement had been fully translated and each of its terms reviewed with the defendant, and 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 ...