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United States v. Sukin

United States District Court, W.D. Washington, Tacoma

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD C. SUKIN, Defendant.

          REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY AND PLEA AGREEMENT

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         This case departs from the well-trodden path usually followed when a magistrate judge reviews a plea agreement, receives defendant's guilty plea, and recommends to the district court judge that both should be accepted. In this case, because defendant is pleading guilty to eight counts of mail fraud - with a potential outside limit of 160 years in prison - and the parties have failed to agree on a number of factors that could affect defendant's sentence, this Court is concerned that at this time defendant lacks a sufficient quantum of information to make a knowing, intelligent, voluntary decision to plead guilty. This problem is exacerbated by a provision in the plea agreement whereby defendant is giving up most of his rights to appeal the sentence ultimately imposed by the Court. While giving up rights to a future mistake always involves certain risks, those risks are compounded in complicated cases where, as here, the parties have so many areas of disagreement and areas of sentencing disparity. In such cases, when the “quantum of information” is so low, and the risks for defendant are so high, defendant's guilty plea could be “inherently unknowing.”

         Fortunately, the Rules and presentence procedures provide a possible solution. For the reasons discussed more thoroughly herein, the Court is recommending that Judge Settle defer his decision on accepting the plea until after defendant receives the presentence report, any government objections, and any addendums, as set forth in Fed. R. Crim. P. 32(d) - (g). Then, if defendant chooses not to withdraw his guilty plea by a date certain, the Court can decide whether or not to accept the guilty plea.

         This will allow the Court to be assured that defendant will have the benefit of significantly more information than he has at this stage of the proceeding, and will allow the Court to make the most informed decision regarding whether or not defendant Dated this guilty plea knowingly, intelligently and voluntarily.

         Background

         Defendant, by consent (Dkt. 18), has appeared before the Court pursuant to Fed. R. Crim. P. 11, and has entered a plea of guilty to the Indictment. The parties have also submitted a plea agreement for this Court's consideration (see Dkt. 20).

         Defendant was charged with eight counts of mail fraud in connection with a scheme to receive deposits for franchises, based on false promises and representations (Dkt. 1). The proposed plea agreement contemplates that defendant will plead guilty to all eight counts.

         The parties agree that, generally, fraud cases involve complicated guidelines calculations (Trans. 35). And, this plea agreement does little to simplify those calculations. Among other things, the parties concede that:

         1. There is no agreement on the amount of the loss (Trans. 6). The government claims that the loss may be as high as $550, 742.15 (Trans. 15). However, defendant claims that the amount of loss is no greater than $450, 000 (id.). Within the admitted facts, defendant is admitting to particular events that amount to approximately $85, 000 (Trans. 19, 65-66). This is a significant difference and could amount to a two level increase in the calculation of the base offense level (Trans. 8, 15, 31; Sentencing Guidelines §2B1.1).

         2. Although the government has stated in open court that it has no intention of asking the Court to impose consecutive sentences for all eight counts, there is nothing in the plea agreement on this issue (Trans. 72-75). Defendant faces a maximum sentence of twenty years per count. The Court, theoretically, could determine that the maximum sentence on one count is “inadequate to achieve the total punishment, ” and could impose a sentence of up to 160 years in prison (Trans. 58-59, 78-79, 81; Sentencing Guidelines, §5G1.2(c)).

         3. The parties have not agreed on any of the potentially applicable enhancements (Trans. 8, 31). The Sentencing Guidelines have 4 pages of potential enhancements for this offense. United State Sentencing Commission Guidelines Manual, pages 89 - 93 (2016). So, for instance, the government is not conceding at this point whether or not it will seek enhancements for any alleged abuse of trust (Trans. 18, 32, 67-69, Sentencing Guidelines §2B1.1(b)(9)), securities fraud, (Trans. 20, Sentencing Guidelines §2B1.1(b)(19)), whether or not it resulted in a financial hardship (Trans. 18 - 19, Sentencing Guidelines §2B1.1(b)(2)(C)), or whether or not it is a “sophisticated scheme” (Trans. 19, Sentencing Guidelines §2B1.1(b)(10)(C)). Furthermore, the parties have not agreed on the number of alleged victims (Trans. 18, 32, 64-65, Sentencing Guidelines §2B1.1(b)(2)).

         4. There are no agreements regarding potential downward adjustments, either, such as for possible mental health issues (Trans. 21).

         5. Finally, the government is not waiving its rights to assert other potential enhancements that may not have been disclosed as of the date of the agreement, although counsel at the hearing could not identify any additional enhancements that may be asserted (Trans. 44).

         6. There is no specific sentencing recommendation, other than the government agrees to recommend “no higher than the low-end of the advisory Guidelines range, calculated by the Court at the time of sentencing” (Dkt. 19, page 8, ¶ 11).

         All of these undefined issues will have a significant impact on how the Sentencing Guidelines are calculated and defendant does not have information at this point as to how the government or Probation will evaluate these issues under the Sentencing Guidelines. And, of course, although Judge Settle will undoubtedly do his best to correctly calculate the Guidelines, sometimes even good judges make mistakes - that is why we have appellate courts - and in the proposed plea agreement, defendant is giving up most of his rights to appeal any mistakes in these calculations.

         Like almost all plea agreements reviewed by this Court, paragraph 14 of the plea agreement submitted for the Court's approval in this case provides that so long as “the court imposes a custodial sentence that is within or below the Sentencing Guidelines range . . . as determined by the court at the time of sentencing, Defendant waives” most of his rights to appeal the sentence imposed by the Court (Plea Agreement, Dkt. 19, ¶ 14, at page 10). This language is identical to the language considered by the Honorable Thomas S. Zilly in United States v. Richard Thane Mutschler, CR14-328 TSZ, where the court determined that the plea agreement's waiver of defendant's appellate rights was fundamentally unjust and “inherently unknowing” (CR14-00328, Dkt. 35, page 2). Like the plea agreement in Mutschler, the plea agreement here requires defendant to prospectively waive an error that has not yet occurred. In Mutschler, defendant was pleading guilty to only one count of mail fraud, in exchange for the government's agreement to dismiss all other counts in the indictment (id. at page 3). Like this case, the amount of loss was contested, and most of the possible enhancements were ill-defined and contested (id. at page 4). If anything, the potential consequences of defendant's plea in this case are even more dire than in the case before Judge Zilly because they involve eight counts, instead of one, and the potential of consecutive sentences.

         Although defendant's experienced counsel described this standard appeal waiver in plea agreements as “anti-justice” and “coercive, ” he also admitted that the government regularly requires such a waiver and that the defendants he represents jump at the opportunity of accepting the deal (Trans. 9 - 10). He states that if there is a truly erroneous situation, the government will not enforce the appeal waiver and “allow” defendant to appeal the sentence (Trans. 11, 76-77). Whether or not defendant would be “allowed” to appeal would be up to the government - not defendant (Trans. 77). In summary, he states that the government has his clients “over the barrel, ” and requests the Court to accept the plea and plea agreement, because his client wants to take the deal (Trans. 9). Or, as Judge Zilly put it, “ . . . the waiver has done its job of muting the party with the most at stake and inhibiting the development of balanced jurisprudence.” Mutschler, at page 6.[1]

         In Mutschler, Judge Zilly accepted defendant's plea and the plea agreement and simply struck the waiver of appeal language from the plea agreement as “unjust” (Dkt. 35). The defendant in Mutschler is currently appealing that sentence (Dkt. 54).

         As this Court explained to the parties in this case, striking a clause from the plea agreement is beyond the scope of my duties as a magistrate judge. My job is to fulfill the Court's obligations to “address personally the defendant in open court” and discuss with him the areas identified in Fed. R. Crim. P. 11(b)(1). Then, this Court is charged with the responsibility of reporting to the sentencing judge regarding whether or not the guilty plea is “voluntary, ” Fed. R. Crim. P. 11(b)(2), and reporting whether there is a factual basis for the guilty plea. Fed. R. Crim. P. 11(b)(3). Finally, ...


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