agreeement to guilty plea

Verdict, Agreement and Settlement

United States District Court, 
UNITED STATES OF AMERICA,
v.
Defendant


Agreement to Plead Guilty (with Stipulations and Appeal Waiver)


The United States of America, by and through __________, United States Attorney for the District of ______, and _________ Assistant United States Attorney, enter into the following Agreement based upon the promises and understandings set forth below.

1. Guilty Plea. 
Defendant agrees to plead guilty to the Indictment herein pursuant to Rule 11 of the Federal Rules of Criminal Procedure (Fed. R. Crim. P.).

The Indictment charges the Defendant with having violated Title 18, United States Code, Section 922(g)(4) (possession of a firearm by a person previously involuntarily committed to a mental institution). Defendant and the Government agree that Defendant's plea of guilty is conditional in that he reserves the right, on appeal from judgment herein, to have an appellate court review this Court's decision dated ______ on Defendant's Motion to Dismiss Indictment. The Government consents to the Defendant's conditional guilty plea.

2. Sentencing/Penalties. 

Defendant agrees to be sentenced on the charge described above. Defendant understands that the penalties that are applicable to the charge described above are as follows:

A. A maximum prison term of 10 years (18 U.S.C. § 924(a)(2));
B. A maximum fine of $250,000 (18 U.S.C. § 3571(b)(3));
C. A mandatory special assessment of $100.00 that Defendant agrees to pay at or before the time that he enters a guilty plea; and
D. A term of supervised release of not more than 3 years. Defendant understands that the Defendant's failure to comply with any of the conditions of supervised release may result in revocation of supervised release, requiring the Defendant to serve up to 2 additional years in prison for any such revocation of supervised release pursuant to 18 U.S.C. §3583.


3. Agreements Regarding Sentencing. 

The parties agree to make the following non-binding recommendations as to sentencing:

A. The parties agree to recommend that the Court find that the Defendant has accepted responsibility for the offenses of conviction, and that the Court should reduce the Defendant's Adjusted Offense Level by three levels under U.S.S.G. § 3E1.1.

The Government reserves the right not to recommend a reduction under U.S.S.G. § 3E1.1 if, at any time between his execution of this Agreement and sentencing, the Defendant:
(a) fails to admit a complete factual basis for the plea;
(b) fails to truthfully admit his conduct in the offense of conviction;
(c) engages in conduct which results in an adjustment under U.S.S.G. § 3C 1.1; or
(d) falsely denies or frivolously contests relevant conduct for which the Defendant is accountable under U.S.S.G. § 1B1.3. Defendant understands that he may not withdraw the guilty plea if, for any of the reasons listed above, the Government does not recommend that he receive a reduction in Offense Level for acceptance of responsibility;

B. That either of the following guideline analyses is appropriate in this case:

(1) a determination that the base offense level for the offense of conviction is 14 under U.S.S.G. §2K2.1(a)(6) because the defendant was a prohibited person at the time the defendant committed the instant offense; an increase of the base offense level of 14 by 4 levels under U.S.S.G. §2K2.1(b)(6) because the defendant used or possessed a firearm in connection with another felony offense, namely reckless conduct with a dangerous weapon, or

(2) a determination that the cross reference of U.S.S.G. §2K2.1(c)(1)(A) requires the application of U.S.S.G. §2A2.2 because the defendant used or possessed a firearm in connection with the commission of another felony offense, namely aggravated assault within the meaning of U.S.S.G. §2A2.2. Under U.S.S.G. §2A2.2, the base offense for the offense of conviction is 14 and that base offense level is increase by 5 levels under U.S.S.G. §2A2.2(b)(2) because a firearm was discharged.

C. That the offense level determined under either analysis should be increased by an additional 6 levels under U.S.S.G. §3A1.2(c)(1) because the defendant knew or had reasonable cause to believe that a person was a law enforcement officer and assaulted such officer during the course of the offense, within the meaning of U.S.S.G. §3A1.2(c)(1).

The parties expressly agree and understand that should the Court reject either or both of the recommendations of the parties, Defendant will not thereby be permitted to withdraw his plea of guilty. The parties agree and understand that the Court has the discretion to impose any lawful sentence.


4. Appeal Waivers. 
Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Knowing that, Defendant waives the right to appeal the following:

A. Defendant's conditional guilty plea and any aspect of Defendant's conviction in the above-captioned case with the exception of the right of appeal that he has preserved to have an appellate court review this Court's decision dated 9/21/10 on Defendant's Motion to Dismiss Indictment; and

B. A sentence of imprisonment that does not exceed 51 months.

Defendant's waiver of his right to appeal shall not apply to appeals based on a right that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.
The number of months mentioned in this paragraph does not necessarily constitute an estimate of the sentence that the parties expect will be imposed.

5. Consequences of Breach. 
If Defendant violates or fails to perform any obligations under this agreement (“a breach”), the United States will be released from its obligations hereunder and may fully prosecute Defendant on all criminal charges that can be brought against Defendant. With respect to such a prosecution:

A. The United States may use any statement that Defendant made pursuant to this agreement, including statements made during plea discussions and plea colloquies, and the fact that Defendant pleaded guilty, and Defendant hereby waives any claim under Rule 410 of the Federal Rules of Evidence or Rule 11(f) of the Federal Rules of Criminal Procedure that such statements and guilty plea are inadmissible.

B. Defendant waives any and all defenses based on the statute of limitations with respect to any such prosecution that is not time-barred on the date that this agreement is signed by the parties.

If the United States chooses to exercise its rights under this paragraph, the determination of whether Defendant has committed a breach shall be made by the Court upon an appropriate motion. In a proceeding on such motion, the United States shall have the burden to establish Defendant's breach by a preponderance of the evidence.

6. Speedy Trial Waiver. 
Defendant agrees to waive, and hereby does waive, any and all rights he might have under the Speedy Trial Act, 18 U.S.C. §§ 3161-64, from the date of the execution of this Agreement and continuing thereafter through and including the date upon which sentence is imposed. In the event that the Court determines that Defendant has breached this Agreement, as set forth in Paragraph 5 of this Agreement, then the waiver described in this Paragraph shall continue through and including the date on which the Court determines that such a breach has occurred. Defendant expressly consents to the entry of an Order by the Court excluding such periods of time from such consideration.

7. Abandonment. 
Defendant agrees to voluntarily abandon all right, claim, title, and interest in the firearms listed in the Indictment: a Remington Model 721.270 rifle, bearing serial number 193890; and a Midland-Armsport Model 1126, 12 gauge shotgun, bearing serial number 8710558. Defendant agrees to hold the United States, its agents and employees, harmless from any claims whatsoever in connection with the seizure, abandonment, disposition, and destruction of the firearms.

8. Validity of Other Agreements; Signature. 
This Agreement supersedes any prior understandings, promises, or conditions between this Office and Defendant. However, in the event that Defendant fails to enter his guilty plea or is allowed to withdraw his guilty plea entered hereunder, and the Court determines that Defendant has not breached this agreement, then any proffer agreement between the parties shall remain in effect. No additional understandings, promises, or conditions will be entered into unless in writing and signed by all parties. The signature of Defendant in the space designated signifies his full and voluntary acceptance of this Agreement.

I have read this Agreement and have carefully reviewed every part of it. I understand it and I have voluntarily agreed to it.

I am legal counsel for Defendant. I have carefully reviewed every part of this Agreement with Defendant. To my knowledge, defendant's decision to enter into this Agreement is an informed and voluntary one.

Date: ________