United States District Court, W.D. Washington, Tacoma
ORDER GRANTING THE GOVERNMENT'S MOTION TO FILE
OVER-LENGTH BRIEF ADOPTING R&R IN PART, SETTING PLEA
HEARING, AND DEFERRING RULING ON PLEA AGREEMENT
BENJAMIN H. SETTLE United States District Judge.
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).
PROCEDURAL AND FACTUAL BACKGROUND
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.
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.
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 . . .
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.
January 25, 2017, Judge Creatura held another hearing and
heard argument from the parties as well as the probation
officer. Dkt. 25.
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,
Sukin neither objected to the R&R nor responded to 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.
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 ...