United States District Court, W.D. Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
JAMES G. WELSH, Magistrate Judge.
On October 30, 2014 came the United States, by counsel, and came also the defendant, in her own proper person and by her 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 #223).
As set forth in more detail in the Third Superseding Indictment (docket #122), the Grand Jury previously returned a multiple count, multiple defendant, Third Superseding Indictment ("the 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. In addition, the Indictment contains a Notice of Forfeiture apprising the above-named defendant that certain of her property is subject to forfeiture upon conviction of the offense alleged against her.
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 her counsel, Michael Hemenway Inquiry was made to the defendant pursuant to Rule 11(b) and (c); the government presented an oral 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
After the defendant was placed under oath, she was addressed personally in open court. She stated 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 testified to the following personal facts: her full legal name is ASHTON GRACE KERN; she is twenty-three (23) years of age, and she has a high school education. She stated she understood she was in court for the purpose of entering a plea of guilty to a felony offense 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 a plea of guilty to the charged felony offense set forth in Count One of the Indictment.
The defendant acknowledged that she had received a copy of the Indictment, and it had been fully explained to her. She stated that she had discussed the charge with her attorney and had been given enough time to do so. She stated she understood the nature of the charge against her in the Indictment and specifically understood it charged a felony offense and contained a forfeiture notice. See Rule 11(b)(1)(G). She testified she had discussed any possible defenses with her attorney, and she had been given adequate time to prepare any defenses she might have to the charge. She stated that her decision to enter a plea of guilty to Count One had been made after consulting with her attorney. She stated she was fully satisfied with the services of her attorney, and it was her intention and desire to enter a plea of guilty to Count One pursuant to the terms of the plea agreement.
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 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 a plea of guilty to Count One of the Information charging her 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. §§ 841(a)(1) and (b)(1)(C) [& A.1.]; the defendant's express acknowledgment of the maximum statutory penalty for the offense charged in Count One [& A.1.]; the defendant's understanding that she may be required to pay fees for her incarceration and supervised release, that she may be required to pay restitution, and that her assets may be subject to forfeiture [&& A.1. and B.4.]; the defendant's admission of her factual guilt to the offense charged in Count One of 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.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 she would not be allowed to withdraw her guilty plea irrespective of the sentence imposed by the court [& 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 defendant's 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 her 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 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 [&D.2.]; the defendant's satisfaction with the advice and assistance of his attorney [§ D.3.]; 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 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, 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 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 counsel for the government outlined the range of punishment for the offense charged in Count One of the Indictment the defendant acknowledged that she understood the maximum penalty provided by law for the said 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. See Rule 11(b)(1)(H)-(I). In addition, the defendant acknowledged that she understood that she would be required to pay a mandatory $100.00 special assessment per felony conviction count. 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 a felony offense and that such adjudication may deprive her of valuable civil rights, such as the right to vote, the right to hold public office, the ...