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052511 Mark Garcia Plea Deal

052511 Mark Garcia Plea Deal

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Case3:09-cr-00863-JSW

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MELINDA HAAG (CABN 132612) United States Attorney MIRANDA KANE (CABN 150630) Chief, Criminal Division TAREK HELOU (CABN 218225) ARVON PERTEET (CABN 242828) Assistant United States Attorneys 450 Golden Gate Ave., Box 36055 San Francisco, California 94102 Telephone: (415) 436-7200 Fax: (415) 436-7234 E-Mail: TarekJ.Helou@usdoj.gov Attorneys for the United States of America

FILED
MAY 2J 2011
RICHARD W. WIEKING CLERK. U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERlCA, ) No. CR 09-0863 JSW PLEA AGREEMENT

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v.

l
)

MARK GARCIA,
Defendant.

~ )
)

I, MARK GARCIA, and the United States Attorney's Office for the Northern District of California (hereafter "the government") enter into this written plea agreement (the "Agreement")

pursuant to Rule 11(c)(l)(A) & 11(c)(I)(C) of the Federal Rules of Criminal Procedure: The Defendant's Promises l. I agree to plead guilty to Count 2 of the captioned Superseding Indictment

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charging me with conspiracy to distribute and possess with intent to distribute marijuana, in violation of21 U.S.C. §§ 846, 841(a)(1), and 84 1(b)(l)(B)(vii). I agree that the elements ofthe

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offense are as follows: (1) there was an agreement between two or more persons to distribute GARCIA PLEA AGREEMENT

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marijuana, and (2) I joined in the agreement knowing of its purpose and intending to help
accomplish that purpose. a. I agree that the maximum penalties are as follows: 20 years

Maximum

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b.
c. d. e. f.

Maximum fine
Minimum supervised release term Maximum supervised release term Mandatory special assessment Forfeiture

$1,000,000
3 years Lifetime supervised release

$100
Proceeds and instrumentalities of the crime

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g.

Other possible consequences of guilty plea
1.

Mandatory and discretionary denial of federal benefits upon conviction of drug offenses, 21 U .S.C. § 862 and § 862a; and

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ii.

Deportation.

I recognize that pleading guilty may have consequences with respect to my immigration status if! am not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which I am pleading guilty. (Indeed, because I am pleading guilty to conspiracy to distribute and possess with intent to distribute marijuana, removal is presumptively mandatory.) Removal and other immigration consequences are the subject of a

separate proceeding, however, and I understand that no one, including my attorney or the district court, can predict to a certainty the effect of my conviction on my immigration status. I nevertheless affirm that

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iwant

to plead guilty regardless of any immigration consequences that

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my plea may entail, even if the consequence is my automatic removal from the United States.

2.

I agree that I am guilty of the offense to which I will plead guilty, and I agree that

the following facts are true: Between February 2009 and September 9, 2009, both dates being approximate and inclusive, I worked at Beneficial Care Collective (hereinafter known as "BCC"), as the security guard at the direction of Scott Feil. At the time that I began working at BCC I knew that BCC sold marijuana and that I would be participating in the sale of marijuana. GARCIA PLEA AGREEMENT 2

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At

BCC, I was responsible for the daily cash drops from the sales of the marijuana at

BCC. I was also one of the people responsible for the day to day operations of BCC under the direction of Scott Feil. From February 2009 to September 9,2009, at BCC, I knowingly possessed and sold approximately 75 kilograms of marijuana. I kept a Smith and Wesson .38

Special Revolver (serial number 41853) in a bag at BCC while at BCC on September 9, 2009. I agree and stipulate that the total amount of marijuana attributable to me for purposes of relevant conduct is 75 kilograms. 3. I agree to give up all rights that I would have ifI chose to proceed to trial,

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including the rights to a jury trial with the assistance of an attorney; to confront and cross-examine government witnesses; to remain silent or testify; to move to suppress evidence or raise any other Fourth or Fifth Amendment claims; to any further discovery from the government; and to pursue any affirmative defenses and present evidence. I also agree to give up

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my right to have a jury determine the quantity of drugs involved in the offense charged in Count 2 of the captioned Superseding Indictment, and I admit to the quantity of drugs involved in the offense, for purposes of relevant conduct, as set forth in Paragraph 2. 4. I agree to give up my right to appeal my conviction, the judgment, and orders of

the Court. I also agree to waive any right I may have to appeal any aspect of my sentence, including any orders relating to forfeiture and/or restitution. In return for the government's promises set out below, I agree that the government may reinstate all of the dismissed counts and include any other charges by Superseding Indictment should my case be remanded to district court following an appeal for any reason. I further agree that any applicable statute of limitations that has not run as of the date the Agreement was signed for any charge arising out of the Northern District of California shall be tolled and extended from that date until the date that the mandate is spread in the district court from any such appeal. 5. I agree to waive any right I may have to file any collateral attack on my conviction

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or sentence, including a petition under 28 U.S.c. § 2255 or 28 U.S.C. § 2241, or motion under 18 U.S.C. § 3582, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated in connection with the GARCIA PLEA AGREEMENT

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negotiation of this Agreement. evidence obtained in this case.

I understand that the government

will not preserve any physical

6.

I agree not to ask the Court to withdraw my guilty plea at any time after it is I

entered, unless the Court declines to accept the sentence agreed to by the parties.

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agree that the government may withdraw from this Agreement if the Court does not accept the agreed upon sentence set out below. I agree that if the Court does not accept the agreed upon sentence set out below, the statute of limitations shall be tolled from the date I signed the Agreement until the date the Court does not accept the Agreement. I understand that by entering into this Agreement: (a) I agree that the facts set forth in Paragraph 2 of this Agreement shall be admissible against me under Fed. R. Evid. 801(d)(2)(A) in any subsequent proceeding, including at trial in the event I move to withdraw my guilty plea for any reason other than the Court declining to accept the sentence agreed to by the parties, and (b) I expressly waive any and all rights under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 with regard to the facts set forth in Paragraph 2 of this Agreement in such subsequent proceeding.

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7.

I agree that the Court will use the Sentencing Guidelines to calculate my sentence.

I understand that the Court must consult those Guidelines and take them into account when

sentencing, together with the factors set forth in 18 U.S.C. § 3553(a). I also agree that the Sentencing Guidelines offense level will be calculated as follows and that I will not ask for any other adjustment to or reduction in the offense level or for a downward departure from the Guidelines range: a. Base Offense Level, U.S.S.G. § 2Dl.l(a)(3), Marijuana - 75 kgs (c)(9): 22

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b.

Specific offense characteristics: U.S.S.G. § 2Dl.l(b)(l) (possession of a dangerous weapon during the offense) Amount of drugs: Marijuana Decrease for role in the offense:

+2

c.
d.

75 kgs
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1/ GARCIA PLEA AGREEMENT 4

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e.

ofU.S.S.G. § 3El.l, I may be entitled to a three-level reduction for acceptance of responsibility, provided that I forthrightly admit my guilt, cooperate with the Court and the Probation Office in any presentence investigation ordered by the Court, and continue to manifest an acceptance of responsibility through and including the time of sentencing. Adjusted offense level:

Acceptance of Responsibility: If I meet the requirements

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f.

I agree that, regardless of any other provision in this Agreement, the government may and will provide to the Court and the Probation Office all information relevant to the charged offense or the sentencing decision.

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8.

I agree that a reasonable and appropriate disposition of this case, under the

Sentencing Guidelines and 18 U.S.C. § 3553(a), and the sentence to which the parties have agreed, is as follows: a. If I fail to cooperate with the government as set forth in this Agreement

below, and/or the govemment determines that I failed to provide substantial assistance as defined in U.S.S.G. § 5Kl.1 and/or 18 U.S.C. § 3553(e), a sentence of30-37 months imprisonment, 4 years of supervised release (with conditions to be fixed by the Court), a fine to be fixed by the Court, and a $100 special assessment; b. If I do cooperate with the government as set forth in this Agreement below

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and the government determines that I have provided substantial assistance as defined in U.S.S.G. § 5KU and/or 18 U.S.C. § 3553(e), a sentence of4 years probation with conditions to be fixed by the court and the special condition that 6 months be served in home detention, a fine to be fixed by the Court, and a $100 special assessment.
9.

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I agree to cooperate with the U.S. Attorney's Office before and after I. am

sentenced. My cooperation will include, but will not be limited to, the following: a. I will respond truthfully and completely to any and all questions put to me, whether in interviews, before a grand jury or at any trial or other proceeding; I will provide all documents and other material asked for by the government;

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b.

GARCIA PLEA AGREEMENT

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c. d. e.
f. g.

I will testify truthfully at any grand jury, court or other proceeding as requested by the government; . I will surrender any and all assets acquired or obtained directly or indirectly as a result of my illegal conduct; I will request continuances of my sentencing date, as necessary, until my cooperation is completed; I will not reveal my cooperation, or any information related to it, to anyone without prior consent of the government.

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I agree to the forfeiture of the following property (hereinafter "subject property"):
(1)

Smith and Wesson .38 Special Revolver and ammunition (serial number 4 1853).

I admit that the subject property constitutes proceeds from drug trafficking and/or instrumentalities of drug trafficking, and is thus forfeitable to the United States pursuant to the provisions of21 U.S.C.§ 853 and the procedures outlined in Rule 32.2 of the Federal Rules of Criminal Procedure. I relinquish any and all right, title and interest I may have in the subject property and withdraw all claims thereto and agree that said property can be forfeited to the United States without further notice to me. I further agree not to assist any other individual in any effort to falsely contest their forfeiture. I further agree to waive all constitutional and statutory challenges in any manner (including direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with this Agreement on any grounds, including that the' forfeiture constitutes an excessive fine or punishment, and including statute of limitations. I also agree to consent to the forfeiture, destruction, and/or any other lawful and appropriate disposition of all firearms or contraband seized by any law enforcement agency in this investigation, including but not limited to Smith and Wesson .38 Special Revolver (serial number 41853) and ammunition seized during the execution of search warrants in this case on September 9, 2009. I admit that I am the sole owner of said firearms and contraband, I relinquish any and all right, title and interest I may have in said firearms and contraband, and agree that such right, title and interest can be forfeited to the United States without further notice to me. Ialso agree that Iwill not contest any administrative or judicial forfeiture proceeding (whether criminal or civil, state of federal) which may be brought against said firearms or contraband, nor will I assist any other individual in any effort to falsely contest their forfeiture. I further waive . any and all claims, in any claim based on the expiration of the applicable statute oflimitations, against the commencement of forfeiture of the subject firearms and contraband.

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10.

I agree that the government's

decision whether to file a motion pursuant to Promises"

U.S.S.G. § 5Kl.l and/or 18 U.S.C. § 3553(e), as described in the "Government's

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section below, is based on its sole and exclusive decision of whether I have provided substantial GARCIA PLEA AGREEMENT

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assistance

and that decision

will be binding on me. I understand
or the extent of the departure

that the government's

decision

whether to file such a motion, not depend on whether

recommended

by any motion, will that the Court will

convictions

are obtained in any casco I also understand made by the government. or attempt to commit any crimes

not be bound by any recommendation
II_

I agree not to commit

before sentence

is imposed

or before I surrender intentionally government; Agrcement. provide

to serve my sentence;

not to violate the terms of my pretrial Office, Pretrial

release; not to Services, or the

false information

to the Court, the Probation

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and not to fail to comply

with any of the other promises

I have made in this in this case, cither

J agree not to have any contact with any victims or witnesses before and after I am sentenced. mail, or electronic any harassing, This includes,

directly or indirectly, personal contact; communication;

but is not limited to, form of by me directeclto as a condition of

telephone, and includes

mail contact, or any other written conduct

annoying, or intimidating

any victims or witnesses. my supervised Agreement,

I agree that the Court should include this agreement I agree that, if I fail to comply with any promises will be released from all of its promises

release term.

I have made in this

then the government

in this Agreement, from my

including those set forth in Paragraphs guilty plea. ) 2. Agreement, government If I am prosecuted

15 through 21 below, but I will not be released

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after t~liling to comply with any promises

I made in this or other provisions of

then (a) I agree that any statements agency or in Court, whether

I made to any law enforcement
to the cooperation

or not made pursuant

this Agreement, Constitution,

may be used in any Wily; (b) I waive any and all claims under the United States Federal Rules of Criminal Procedure, Rule 410 of the Federal the use of my to any

Rule 11(£) oftbe

Rules of Evidence, statements, prosecution

or any other federal statute or rule, to suppress from those statements;

or restrict

or any leads derived

and (e) J waive any defense if the limitations period

that it is barred by a statute of limitations, and the date I am indicted.

has run between

the date of this Agreement 13. the government

I agree that this Agreement

contains all of the promises in the future.

and agreements

between

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and me, and I will not claim otherwise

,GARCIA

PLEA AGREEMENT

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14.

I agree that this Agreement binds the U.S. Attorney's Office for the Northern

District of California only, and does not bind any other federal, state, or local agency. The Government's Promises 15. The government agrees to move to dismiss any open charges pending against the

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defendant in the captioned Superseding Indictment at the time of sentencing.
16.

The government agrees not to file any additional charges against the defendant

that could be filed as a result of the investigation that led to the pending Superseding Indictment.
17. 18.

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The government agrees to recommend the Guidelines calculations set out above. The government agrees not to use any statements made by the defendant pursuant

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to this Agreement against him, unless the defendant fails to comply with any promises in this Agreement. The government may, however, tell the Court and the U.S. Probation Office about the full extent of the defendant's Sentencing Guidelines. 19. If, in its sole and exclusive judgment, the government decides that the defendant criminal activities in connection with the calculation of the

has cooperated fully and truthfully, provided substantial assistance to law enforcement authorities within the meaning ofU.S.S.G.

§ SKU, and otherwise complied fully with this Agreement, it

will file with the Court a motion under § SKU and/or 18 U.S.C. § 3553(e) that explains the nature and extent of the defendant's 20. cooperation and recommends a downward departure.

Based on the information now mown to it, the government will not oppose a

downward adjustment of three levels for acceptance of responsibility under U.S.S.G. § 3El.l provided that the defendant forthrightly admits his guilt, cooperates with the Court and the Probation Office in any presentence investigation ordered by the Court, and continues to manifest an acceptance of responsibility through and including the time of sentencing. 21. The government agrees that the reasonable and appropriate sentence in this case

should be as set forth in Paragraph 8 above, unless the defendant violates the Agreement as set forth in Paragraphs 8 through 11 above or fails to accept responsibility. The Defendant's Affirmations 22. I confirm that I have had adequate time to discuss this case, the evidence, and this

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GARCIA PLEA AGREEMENT

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Agreement with my attorney, requested. 23.

and [hat he has provided me with all the legal advice that I

I confirm that while I considered

signing this Agreement

and, at the time I signed

it, 1 was not under the influence 24.

of any alcohol, drug, or medicine. the charges

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I confirm that my decision to enter my guilty plea is made knowing

that have been brought against me, any possible defenses, and the benefits and possible detriments of proceeding to trial. I also confirm that my decision to plead guilty is made Agreement.

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voluntarily, and no one coerced or threatened me to enterinlo,ti1is
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Dated: (

/

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I

/1 .-J,!'

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/MARK GARCIA : Defendant '

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MELINDA HAAG United States Attorney

Dated:

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TAREK HELOU \\) ,,/1 ARVON PERTEET Assistant United Stales Attorneys

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I have fully explained terms of this Agreement.

to my client all the rights that a criminal defendant

has and all the

In my opinion, my client understands

all the terms of this Agreement now known to

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and all the rights he is giving up by pleading guilty, and, based on the infonnation me, his decision to plead guilty is knowing and voluntary

Dated:

l_.:

'L:

/

--- ---./

.
I

MARK ElBERT Attorney for Defendant

MARK GARCLA

/

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GARClA PLEA AGREEMENT

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[eR 09-0863 JSWl

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