United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, 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, the Grand Jury previously returned a single count Indictment charging in Count One that from on or about March 2012 to on or about August 2014 this defendant, together with others, knowingly conspired to distribute 100 grams or more 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), all in violation of Title 21, U.S.C., Sections 841(b)(1)(B) and 846.
The plea hearing was conducted before the undersigned on March 9, 2015. The defendant was at all times present in person and with his counsel, Bradford Braford. The United States was represented by Andrew Bassford, Assistant United States Attorney. The proceedings were recorded by a court reporter. See Rule 11(g), Federal Rules of Criminal Procedure.
With the defendant's informed and written consent, the undersigned made a Rule 11 inquiry; the government presented a written and orally supplemented proffer of evidence for the purpose of establishing an independent basis for the defendant's plea, and the defendant entered a plea of guilty to the offense originally 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 GREGORY LEON ANDERSON. He is twenty-four (24) years of age, and he completed two years of community college. He is able to read, write, and understand English without difficulty. 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 enter a plea of guilty to the felony offense charged in Count One of the Indictment.
The defendant acknowledged that he had received a copy of the Indictment; it had been fully explained to him; he had discussed the charge with his attorney, and he had been given enough time to do so. He stated he understood the nature of the charge against him in the Indictment and specifically understood that it charged a felony offense. See Rule 11(b)(1)(G). 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 guilty plea to the felony offense described in 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 of guilty 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 participating in a conspiracy to deliver 100 grams or more of a mixture and substance containing a detectable amount of heroin (Count One of the Indictment) [¶ A.1]; the defendant's express acknowledgment of both the mandatory minimum and the maximum sentence for the offense [¶ A.1]; the defendant's express understanding of his various potential monetary obligations, including that he may be required to pay fees for his incarceration and supervised release, and that he must pay a $100.00 special assessment per felony count of conviction [¶¶ A.1 & B.4.a]; the defendant's admission of his factual guilt to Count One of the Indictment and his stipulation that there is a sufficient factual basis to support each and every material allegation underlying the said charge to which he was proposing to plead guilty [¶¶ A.1 & E.5]; 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 United States 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 express acknowledgment that the government would object to any sentence below the guideline range [¶ 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 terms of the acceptance of responsibility provision [¶ B.2]; the substantial assistance provision [¶ B.3]; the defendant's financial disclosure obligation [¶ B.4.b]; the scope of the defendant's express waiver of his right of direct appeal [¶ C.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 [¶ 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 various additional obligations, including agreeing not to obstruct justice, make a false statement, or make or adopt any objections to the presentence report that are inconsistent with the plea agreement [¶ C.8]; the remedies available to the government in the event of a breach of the agreement by the defendant [¶ D]; 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.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 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; he further represented that he had reviewed and initialed every page with his lawyer. Counsel for the defendant, likewise, represented that his understanding was the same and he stated that he was satisfied that the defendant understood all of its terms. The defendant was 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. See Rule 11(b)(2).
After the range of punishment for the offense charged in Count One of the Indictment had been outlined to the defendant, he acknowledged that he understood the mandatory minimum penalty provided by law for conviction of the offense charged in Count One of the Indictment to be confinement in a federal penitentiary for five (5) years, and the maximum penalty proved by law for conviction of this offense to be confinement in a federal penitentiary for forty (40) years, a $5, 000, 000 fine, and a term of supervised release. See Rule 11(b)(H)-(I). In addition, the defendant 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 ...