United States District Court, W.D. Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
JAMES G. WELSH, Magistrate Judge.
On November 13, 2014 came the United States, by counsel, and came also the defendant, in his own proper person and by his counsel. At which time counsel for the parties jointly represented that the parties had entered into a plea agreement, pursuant to Rule 11 of the Federal Rules of Criminal Procedure. 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 (docket #295).
As set forth in more detail in a Third Superseding Indictment (docket #122) ("the Indictment"), the Grand Jury previously returned a multiple count, multiple defendant, Indictment charging the above-named defendant in Count One that beginning on or about the Summer of 2011 and continuing to September 2013, in the Western Judicial District of Virginia and elsewhere this defendant and others known and unknown, did knowingly and intentionally combine, conspire, confederate and agree with other persons, both known and unknown to the Grand Jury, to knowingly and intentionally distribute and possess with intent to distribute a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, and to distribute and possess with intent to distribute a mixture or substance containing a detectable amount of cocaine base, also known as "crack, " a Schedule II 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, and charging the above-named defendant in Count Eight that on or about June 12, 2013 this defendant did knowingly and intentionally possess with intent to distribute a measurable quantity of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, All in violation of 21 U.S.C. §§ 841(a)(1) and 841(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 one or more of the offense alleged against him.
The Rule 11 plea hearing was recorded by a court reporter. See Rule 11(g). The United States was represented by Donald R. Wolthuis, Assistant United States Attorney. The defendant was at all times present in person and with his counsel, Gregory W. Bowman. Inquiry was made to the defendant pursuant to Rule 11(b) and (c); the government presented a written Agreed Statement of Facts for the purpose of establishing an independent basis for the agreed plea, and the defendant entered pleas of guilty to the felony offenses charged in Counts One and Eight of the Indictment.
DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES
After the defendant was placed under oath, he was addressed personally in open court. He stated 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 testified to the following personal facts: his full legal name is JOSHUA ADAM PETTYJOHN; he is twenty-eight (28) years of age, and he has a high school education. He stated he understood he was in court for the purpose of entering pleas of guilty to two felony offenses which he could not later withdraw. Upon inquiry, the defendant's attorney represented that he had no reservations about the defendant's competency to entering pleas of guilty to the charged felony offenses set forth in Count One and Count Eight of the Indictment.
The defendant acknowledged that he had received a copy of the Indictment, and it had been fully 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 he understood the nature of the charges against him in the Indictment and specifically understood it charged two felony offenses and contained a forfeiture notice. See Rule 11(b)(1)(G). He testified he had discussed any possible defenses with his attorney, and 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 Counts One and Eight had been made after consulting with him attorney. He stated he was fully satisfied with the services of his attorney, and it was his intention and desire to enter pleas of guilty 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 him 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 next set forth the government's understanding of the plea agreement in some detail: including the agreement for the defendant to enter pleas of guilty to Count One of the Indictment charging him with participating in a criminal conspiracy to distribute and to possess with intent to distribute both "crack" cocaine and heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(C), and to Count Eight of the Indictment charging him with the knowing and intentional possession with the intent to distribute, of a measurable quantity of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) [¶ A.1.]; the defendant's express acknowledgment of the maximum statutory penalty for the offense charged in Count One and for the offense charged in Count Eight [¶ A.1.]; his express recognition that any period of incarceration would be followed by a period of supervised release of at least three (3) years which, if violated, could increase his possible period of incarceration [¶ 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.4.]; the defendant's admission of his factual guilt to the offenses charged in Counts One and Eight of the Indictment [¶ A.1.]; the defendant's various monetary obligations, including payment of a $200.00 special assessment and the related restitution and assessment provisions [¶¶ A.1 and B.4.a.]; the defendant's express 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 he would not be allowed to withdraw his guilty plea irrespective of the sentence imposed by the court [¶ B.1.]; the defendant's acknowledgement that the government would object to any sentence below the guideline range [¶ B.1.]; the parties' agreement for purposes of guideline sections 2D1.1 and 1B1.3 that the exact drug weight is a factual matter to be determined by the court, and the defendants agreement to be bound by that factual finding [B.2.]; the acceptance of responsibility provision [¶ B.2.]; the substantial assistance provision [¶ B.3.]; the defendant's monetary, financial disclosure and related obligation [¶ B.4.a.-c.]; 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 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)B(O) and 11(c)(1)B(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 discussed and 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 record that the written plea agreement constitutes the best evidence of its terms, and as such it "speaks for itself."
After counsel for the government outlined the range of punishment for the two offenses, the defendant acknowledged that he understood the maximum penalty provided by law for the Count One offense was confinement in a federal penitentiary for a term of twenty (20) years, a fine of $1, 000.000.00 and a term of supervised release or at least three (3) years, and he understood the maximum penalty provided by law for the Count Eight offense was the same, confinement in a federal penitentiary for a term of twenty (20) years, a fine of $1, 000.000.00 and a term of supervised release or at least three (3) years. See Rule 11(b)(1)(H)-(I). In addition, the defendant acknowledged that he understood that he would be required to pay a mandatory $200.00 special assessment per felony conviction count. 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 two felony offenses and that such adjudication may deprive him of valuable civil rights, such as the right to vote, the right to hold public office, the ...