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United States v. Sukin

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

March 9, 2017

DONALD C. SUKIN, Defendant.


          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 26), and the Government's objections to the R&R (Dkt. 28).


         On June 29, 2016, the Government filed an indictment against Defendant Donald C. Sukin (“Sukin”) charging Sukin with eight counts of wire fraud in violation of 18 U.S.C. § 1343. Dkt. 1.

         On January 6, 2016, the parties filed a plea agreement. Dkt. 19. In relevant part, the plea agreement provides that (1) “[t]he government agrees to move to dismiss any remaining counts at the time of sentencing.”, Id. ¶ 1(a), (2) “[t]he government agrees to recommend a total term of imprisonment for Counts of 1-8 no higher than the low-end of the advisory Guidelines range calculated by the Court at the time of sentencing.” Id. ¶ 11, (3) the Government “agrees not to prosecute Defendant for any additional offenses known to it as of the time of this Agreement that are based upon evidence in its possession at this time, and that arise out of the conduct giving rise to this investigation.”, Id. ¶12, (4) if “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 [his right] to challenge, on direct appeal, the sentence imposed by the court . . .”, Id. ¶14, and (5) “If Defendant breaches this Plea Agreement at any time by appealing or collaterally attacking . . . [the] sentence in any way, the United States may prosecute Defendant for any counts . . . that were dismissed or not charged pursuant to this Plea Agreement.” Id. Later that day, Judge Creatura held a change of plea hearing wherein Sukin plead guilty to counts one through eight. Dkt. 20. Judge Creatura took the plea under advisement and informed the parties that he would draft an R&R for the Court. Id.

         On January 19, 2017, Judge Creatura issued a memorandum outlining his preliminary conclusions regarding Sukin's plea and the plea agreement. Dkt. 22. Judge Creatura expressed concern that, in the plea agreement, Sukin waived his right to appeal the Court's future determination of the sentencing guideline factors without “a sufficient quantum of information” regarding how the factors may ultimately be decided. Id. at 2. Thus, Judge Creatura informed the parties that he was considering recommending that the Court “defer his decision to accept or reject the plea and the plea agreement until a date certain after the completion of the presentence report . . . .” Id.

         On January 24, 2017, the Government responded. Dkt. 24. The Government contended that binding authority mandated that the Court accept the plea and, based on the type of plea agreement, the Court was without authority to reject it. Id.

         On January 25, 2017, Judge Creatura held another hearing and heard argument from the parties as well as the probation officer. Dkt. 25.

         On January 30, 2017, Judge Creatura issued the R&R recommending that the Court defer acceptance of the guilty plea and plea agreement. Dkt. 26. On February 14, 2017, the Government filed a motion for over-length brief and objections consistent with its earlier response. Dkts. 27, 28.[1] Sukin neither objected to the R&R nor responded to the Government's objections.


         A. Standard

         The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).

         B. Plea

         Federal Rule of Criminal Procedure 11(b) governs the consideration and acceptance of a guilty plea. Rule 11(b) “lists various requirements that must be met ‘[b]efore the court accepts a plea of guilty, ' without giving judges the option of rejecting a plea once these requirements are satisfied.” In re Vasquez-Ramirez, 443 F.3d 692, 695 (9th Cir. 2006) (quoting Fed. R. Crim P. 11(b)(1)) (footnote omitted). Subsection (1) requires the Court to “inform the defendant of” certain matters and “determine that the defendant understands” those matters. Fed. R. Crim P. 11(b)(1). Subsection (2) requires the Court to ensure that “the plea is voluntary and did not result from ...

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