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United States v. Brown

United States District Court, W.D. Virginia, Roanoke Division

September 27, 2019

UNITED STATES OF AMERICA,
v.
KEENAN AVERY BROWN, Defendant.

          REPORT AND RECOMMENDATION

          Hon. Robert S. Ballou United States Magistrate Judge

         In accordance with the provisions of 28 U.S.C. § 636(b)(3), and upon the Defendant's informed and written consent, this case was referred to me for the purpose of conducting a plea hearing.

         The Government charged the Defendant in a six-count Superseding Indictment, and the Defendant is pleading guilty to Count One, charging possession with the intent to distribute 28 grams or more of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and Count Two, charging possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). These events were charged as occurring within the Western District of Virginia.

         The plea hearing was conducted before me on September 25, 2019. The Defendant was at all times present in person and with his counsel, Chris Kowalczuk. The United States was represented by Kari K. Munro, Assistant United States Attorney. The proceedings were recorded by FTR. See Fed. R. Crim. P. 11(g).

         With the Defendant's informed and written consent, I made a Rule 11 inquiry; the Government presented a written 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 offenses charged in Counts One and Two of the Superseding 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 any statement that he gives under oath against him. See Rule 11(b)(1)(A).

         The Defendant testified to the following personal facts: his name is Keenan Avery Brown. He is 30 years of age, and he completed the ninth grade in school. He is a citizen of the United States, and is able to read, write, and understand English without difficulty. He has no medical condition, either physical or mental, which might interfere with his ability to understand and to participate fully in the proceeding. He stated that 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 the 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 enter a plea of guilty to the felony offenses charged in Counts One and Two of the Superseding Indictment.

         The Defendant acknowledged that he had received a copy of the Superseding Indictment; it had been fully explained to him; he had discussed the charges with his attorney; and he had been given enough time to do so. He stated that he understood the nature of the charges against him in the Superseding Indictment and specifically understood that it charged felony offenses. See Rule 11(b)(1)(G). He stated that his decision to enter a plea of guilty to Counts One and Two of the Superseding Indictment 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 offenses described in Counts One and Two of the Superseding Indictment.

         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 me. The Defendant's written consent was filed and made a part of the record.

         Counsel for the parties 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 possessing with the intent to distribute 28 grams or more of cocaine base (Count One) ([¶A.1] and possessing a firearm in furtherance of a drug trafficking crime (Count Two) ([¶A.1]); the Defendant's express acknowledgment of the maximum sentences for those offenses [¶ A.1]; the Defendant's stipulation that he was convicted of a qualifying serious drug felony on December 20, 2010 and that he understood that the Government had filed an Information pursuant to 21 U.S.C. § 851, subjecting him to an increased penalty for this prior felony drug conviction, but that the Government had agreed to dismiss the Information at sentencing if he complied with his obligations under the plea agreement [¶B.2]; the Government's stipulation that guideline section 2D1.1(c)(8) of the 2018 United States Sentencing Guidelines Manual should apply to Defendant's conduct [¶B.3]; the Defendant's admission of his factual guilt to Counts One and Two of the Superseding Indictment and his stipulation that there is a sufficient factual basis to support each and every material allegation underlying the charges to which he was proposing to plead guilty [¶¶ A.1, F.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 stipulation that all matters pertaining to Counts One and Two of the Superseding Indictment are relevant sentencing conduct [¶ B.3]; the terms of the acceptance of the responsibility provision [¶ B.3]; 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 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 [¶ F.5]; and the substance of the agreement's other terms and provisions. See Rule 11(b)(1)(B)-(N) and 11(c)(1)-(3).

         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 the agreement, initialed each page and signed page 14. 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. See Rule 11(b)(2). The agreement was then received, filed, and made a part of the record. The Defendant acknowledged that he knew his plea, if accepted, would result in his being adjudged guilty of two felony offenses.

         After the range of punishments for the offenses charged in Counts One and Two of the Superseding Indictment had been outlined to the Defendant, he acknowledged that he understood the maximum penalties provided by law for conviction of Count One to be confinement in a federal penitentiary for forty (10) years, a $5, 000, 000 fine, and a term of supervised release of four (4) years; he also acknowledged that he understood the maximum penalties provided by law for conviction of Count Two to be life imprisonment, a fine of $250, 000, and a term of supervised release of five (5) years. See Rule 11(b)(1)(H). He acknowledged that he also understood that, Counts One and Two each have a mandatory minimum sentence of imprisonment of five (5) years and that any sentence on Counts One and Two must be served consecutively. See Rule 11(b)(1)(I). In addition, the Defendant acknowledged that he understood that he would be required to pay a mandatory $100.00 special assessment each as to Counts One and Two, for a total of $200.00. See Rule 11(b)(1)(L).

         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 offense; 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; any applicable forfeiture; and any need to provide for restitution.[1" name="FN1" id= "FN1">1] See Rule 11(b)(1)(J)-(K).

         The Defendant testified that his attorney advised him how the Sentencing Commission Guidelines might apply to his case and the Court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Guidelines, and other factors under 18 U.S.C. § 3553(a). See Rule 11(b)(1)(M). He stated that he understood that the Court will not be able to determine the recommended guideline sentence for his case until after the presentence report has been completed and he and the Government each had an opportunity to challenge the facts reported by the probation officer.

         The Defendant acknowledged that he knew the entry of a guilty plea constituted an admission of all of the elements of each formal felony charge, and he knew that, irrespective of any sentence imposed by the Court, he would have no right to withdraw this guilty plea. He acknowledged that he knew parole had been abolished and that he would not be released on parole. He further acknowledged that he knew and understood any sentence of incarceration imposed by the Court would also include a period of supervised release, and he knew any violation of the ...


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