United States v. Kuskie

          ORDER REJECTING PLEA AGREEMENT

          WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Plea Agreement. (ECF No. 61.) Pursuant to Federal Rule of Criminal Procedure 11(b), the Court accepted Defendant's guilty plea to Count 6 of the Superseding Indictment. (ECF No. 4.) However, plea agreements are governed separately under Rule 11(c). See United States v. Hyde, 520 U.S. 670, 674 (1997) (under Rule 11, “[g]uilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time”). During the change-of-plea hearing, the Court announced that it was deferring the decision whether to accept the Plea Agreement until it could review the Presentence Investigation Report (“PSIR”).^[1] The Court further stated that it would announce its decision by way of separate order. This is that order. And, for the reasons explained below, the Court rejects the Plea Agreement.

         I. BACKGROUND

         The Superseding Indictment, which is dated October 10, 2018, charges Defendant, along with co-defendant Lawrence Lowe, with one count of Hobbs Act robbery, see 18 U.S.C. § 1951(a) (“Count 6”). (ECF No. 4 at 6-7.)^[2] Defendant was arrested, arraigned (pleading not guilty), and released on bond on October 15, 2018. (ECF Nos. 7, 9, 13-14.)

         On June 10, 2019, Defendant filed a Notice of Disposition and requested a change-of-plea hearing. (ECF No. 51.) The Court set a change-of-plea hearing for July 15, 2019. (ECF No. 52.) The Court, however, received and reviewed the Plea Agreement ahead of that hearing. (See id.) The major points of the Plea Agreement are:

• Defendant pleads guilty to Count 6. (ECF No. 61 at 1.)

• The Government agrees that a three-point reduction in offense level for acceptance of responsibility is appropriate. (Id.)

• “[T]he parties agree to jointly recommend [to the Court] no confinement” (id. at 2), or in other words, to recommend a sentence of probation.

         The Plea Agreement's preliminary sentencing calculation estimated an offense level of 17 (inclusive of the three-point reduction) and a criminal history category of I, for an advisory sentencing range of 24-30 months. (Id. at 14.) The Plea Agreement also stated “the parties['] understand[ing] that the Court is free, upon consideration and proper application of all 18 U.S.C. § 3553 factors, to impose” a sentence below, within, or above the advisory guideline range (up to the statutory maximum). (Id. at 16.) The change-of-plea hearing took place on July 15, 2019, as scheduled. (ECF No. 60.) As already noted, the Court accepted Defendant's plea but advised the parties that it reserved ruling on whether it would accept the Plea Agreement.

         II. LEGAL STANDARD

         The Federal Rules of Criminal Procedure contemplate three types of bargains the Government will offer:

[T]he plea agreement may specify that an attorney for the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or ...