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UNITED STATES v. RHODES

July 10, 1995

UNITED STATES OF AMERICA
v.
JACOB WESLEY RHODES, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 On April 20, 1995, April 25, 1995, and July 5, 1995, the Court held an evidentiary hearing on the Defendant's objections to the Presentence Investigation Report dated March 20, 1995. Prior to sentencing on July 7, 1995, which lasted more than 1 1/2 hours, the Court first listened to defense counsel and then heard the Defendant read an eight-page statement which the Court directed be made a part of the record herein. After listening to the written statement of the Defendant, the Court noticed that the Defendant claimed, inter alia, that the previous prosecutor in the case may have made a promise as to the Defendant's possible sentence in this case, and that his previous counsel may have been ineffective in the plea negotiations and should have done more research. As a result thereof, the Court, sua sponte, made inquiry again regarding the voluntariness of the Defendant's plea of guilty and, among other things, advised the Defendant that the Court does not accept pleas from innocent people, and that if he still desired a trial he could have one. After further colloquy between the Court and the Defendant, the Defendant was advised that if the Court proceeded to sentencing, the Defendant would waive any and all of the following claims: (1) that the prosecutor may have, or did in fact, enter into an agreement with the Defendant regarding the amount of time he would receive by virtue of his cooperation in this case; (2) any claim of ineffective assistance of counsel; and (3) that if he did not like the sentence imposed on that date he would thereafter have no right to withdraw his plea.

 Following this inquiry, the Court took the precaution of taking a recess to give the Defendant and his counsel an opportunity to confer and reflect upon these questions by the Court. After the recess, the Defendant was again advised that he could still withdraw his plea if he wished, and he positively and unequivocally said he did waive the aforementioned claims and wanted to proceed to sentencing, and did so without coercion or duress on the part of anybody.

 By virtue of the Defendant's responses, on July 7, 1995, the Court sentenced the Defendant to 87 months in prison, followed by a five-year period of supervised release, as a result of his plea of guilty on December 22, 1994 to Count One of the Indictment filed in this case. This Memorandum Opinion shall set forth the Court's findings of fact and conclusions of law with respect to the sentence imposed, the term of supervised release, the special assessment, and the restitution.

 BACKGROUND

 On November 16, 1994, a federal grand jury returned a four-count Indictment charging the Defendant, Jacob Wesley Rhodes, with Bank Fraud and Aiding and Abetting, in violation of 18 U.S.C. §§ 1344 & 2. On December 22, 1994, the Defendant pled guilty to Count One of the Indictment, pursuant to a written plea agreement. As part of the agreement, the Defendant agreed that the applicable base offense level for the is 6, pursuant to U.S.S.G. § 2F1.1, and agreed not to oppose the following adjustments: 5 levels for "loss in excess of $ 40,000," pursuant to U.S.S.G. § 2F1.1(b)(1)(F); and 2 levels for "more than minimum planning," pursuant to U.S.S.G. § 2F1.1(b)(2). PSR at P 2.

 Following a hearing held in this case on February 10, 1995, the Defendant was arrested in Maryland for passing another bad check. Thereafter, on February 13, 1995, this Court revoked the Defendant's conditions of work release, and ordered that he be held without bond pending sentencing. The Defendant submits that the acts which led to his arrest on February 10, 1995 were performed in an effort to provide assistance to the Government in its investigation of other individuals engaged in bank fraud.

 With the exceptions set forth in this Memorandum Opinion, the Court adopts the findings contained in the Presentence Investigation Report ("PSR") dated April 7, 1995.

 DISCUSSION

 The Defendant has lodged several objections to the PSR, each of which the Court shall address below.

 I. TO THE EXTENT THAT THE PROBATION OFFICE HAS VERIFIED THE DEFENDANT'S PRIOR CONVICTIONS AND PENDING CHARGES, THE COURT HAS PROPERLY CONSIDERED THE SAME IN FASHIONING A SENTENCE

 First, the Defendant objects to several paragraphs under his criminal history, alleging that he never committed many of the crimes listed. As to those convictions for which the Probation Office has no documentation, the Court has not considered them in determining his sentence. Even if the Court disregards the convictions which the Probation Office was unable to verify, however, the Defendant is still well over the required points for criminal history category VI. Accordingly, no adjustment to the applicable criminal history category is warranted.

 The Defendant similarly objects to the pending charges set forth in paragraphs 94, 96 and 97 of the PSR. Again, however, the Probation Office has documentation for these arrests. As to the pending charge set forth in paragraph 94 (regarding his arrest on February 10, 1995 following a Court appearance in this case), the Defendant claims he lacked criminal intent, because he purportedly committed the acts underlying the arrest in an attempt to assist the Government. This argument is irrelevant, however, as the Defendant's February 10, 1995 arrest and pending charge have been verified. Accordingly, the Court finds no merit to the Defendant's objections to paragraphs 94, 96 and 97.

 II. WITHOUT OBJECTION, THE COURT SHALL PLACE THE TOTAL LOSS AT $ 70,000 OR LESS FOR PURPOSES OF DETERMINING THE APPROPRIATE OFFENSE LEVEL

 The Defendant next objects to the amount of total loss used in fashioning his offense level. See PSR P 7. The FBI retrieved the amount relied upon in the PSR ($ 206,450.50) from the typewriter ribbon used to write the checks. The typewriter was found in a locked room to which the Defendant had the only key. Id. At a hearing on April 25, 1995, however, counsel for the Government represented that, reading the transcript of the plea proceeding in a light most favorable to the Defendant, "the government is willing to live with the calculation that the loss is $ 70,000 or less." Tr. (April 25, 1995) at 15. Accordingly, pursuant to U.S.S.G. § 2F1.1(b)(1)(F), the Court shall add ...


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