The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On September 27, 2004, defendant Kevin Walsh was arrested at the Peace Bridge in Buffalo, New York, when the commercial tractor trailer he was driving was discovered by customs officials to contain approximately 487 pounds of marijuana. He was charged in a criminal complaint with possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and importation of marijuana into the United States, in violation of 21 U.S.C. § 952(a)(2).
On October 19, 2004, the defendant was charged by indictment with one count of importation of 100 kilograms or more of marijuana into the United States, in violation of 21 U.S.C. §§ 952(a)(2), 960(a)(1) and 960(b)(2)(G), and one count of smuggling marijuana into the United States, in violation of 18 U.S.C. § 545.
On September 20, 2005, the defendant pled guilty before this Court to a one-count Superseding Information charging him with concealing a material fact, in violation of 18 U.S.C. § 1001(a)(1). As part of the plea agreement, the parties agreed that at sentencing, the government would move to dismiss the Indictment pending against the defendant.
On January 9, 2006, the parties appeared for sentencing. At that time, the Court raised numerous issues, including whether the Court should reject the plea agreement, pursuant to Rule 11(c)(3)(A) of the Federal Rules of Criminal Procedure and U.S.S.G. § 6B1.2(a), because the charge to which the defendant plead guilty does not adequately reflect the seriousness of the actual offense behavior and because accepting the plea agreement would undermine the statutory purposes of sentencing and the sentencing guidelines. The parties subsequently briefed and argued the issue.
For the reasons stated below, the Court rejects the plea agreement in this case.
Although the Court may not participate in plea negotiations, it is certainly appropriate for a judge to scrutinize a deal struck by the prosecutor and defense counsel. See United States v. Torres-Echavarria, 129 F.3d 692, 695 (2d Cir. 1997). "A trial judge is not required to accept every constitutionally valid [i.e., knowing, voluntary and intelligent] guilty plea merely because a defendant wishes so to plead, and may reject a plea in the exercise of sound judicial discretion."
United States v. Severino, 800 F.2d 42, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1056 (1987) (internal citations and quotation marks omitted) (brackets in original); see also Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that a defendant has no absolute right to acceptance of his guilty plea).
Rule 11(c)(3) provides that if a plea agreement calls for the government to move for dismissal of other charges, "the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report." The Rule does not furnish criteria for rejecting a plea. "Such a decision is left to the discretion of the individual trial judge." Severino, 800 F.2d at 45 (citation omitted). Among the reasons that may justify the exercise of discretion to reject a plea agreement is a concern that the resulting sentence would be too lenient. Id. (citation omitted).
Under the rubric of the Sentencing Guidelines, the Court has the responsibility to use its sound discretion to examine plea agreements. "The sentencing judge must ensure that the main objectives of the sentencing guidelines, consistency and certainty in sentencing, are not undermined by plea bargaining between the parties." United States v. Greener, 979 F.2d 517, 520 (7th Cir. 1992). As § 6B1.2(a) of the Sentencing Guidelines provides:
In the case of a plea agreement that includes the dismissal of any charges or any agreement not to pursue potential charges (Rule 11(c)(1)(A)), the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines. Additionally, the official commentary to § 6B1.2 provides:
This requirement does not authorize judges to intrude upon the charging discretion of the prosecutor. If the government's motion to dismiss charges or statement that potential charges will not be pursued is not contingent on the disposition of the remaining charges, the judge should defer to the government's position except under extraordinary circumstances. Rule 48(a), Fed.R.Crim.P. However, when the dismissal of charges or agreement not to pursue potential charges is contingent on acceptance of a plea agreement, the court's authority to adjudicate guilt ...