JENNIFER L. THURSTON, Magistrate Judge.
Pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, the United States of America, by and through McGregor W. Scott, the United States Attorney for the Eastern District of California, and Special Assistant United States Attorney Wayne Dengal, has agreed with the defendant, Juan Goyeneche, and his attorney Jerry Behnke as set forth below.
This document contains the complete Memorandum of Diversionary Plea Agreement ("Plea Agreement") between the United States Attorney's Office for the Eastern District of California ("Government") and defendant Juan Goyeneche regarding this case. This Plea Agreement is limited to the United States Attorney's Office for the Eastern District of California and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities.
The defendant acknowledges that he has been charged in a three-count Criminal Complaint as follows:
Allowing livestock or other privately owned or controlled animals to graze on or be driven across these lands without a permit or lease or other grazing use authorization and timely payment of grazing fees, in violation of 43 C.F.R. § 4140.1(b)(1)(i).
Allowing livestock or other privately owned or controlled animals to graze on or be driven across these lands without a permit or lease or other grazing use authorization and timely payment of grazing fees, in violation of 43 C.F.R. § 4140.1(b)(1)(i).
Allowing livestock or other privately owned or controlled animals to graze on or be driven across these lands without a permit or lease or other grazing use authorization and timely payment of grazing fees, in violation of 43 C.F.R. § 4140.1(b)(1)(i).
(a) The defendant agrees that this Plea Agreement shall be filed with the Court and become a part of the record of the case.
(b) The defendant agrees to enter a plea of guilty to the three counts charged in the complaint, which charges him with three separate violations of allowing livestock or other privately owned or controlled animals to graze on or be driven across these lands without a permit or lease or other grazing use authorization and timely payment of grazing fees, in violation of 43 C.F.R. § 4140.1(b)(1)(i).
(c) The defendant agrees to postpone sentencing in this matter until June 4, 2019. The period from the date the defendant enters a plea of guilty until the date of sentencing shall be known as the "diversionary period."
(d) The defendant understands and agrees that he will not be allowed to withdraw his plea absent a stipulation from the government permitting such withdrawal at the conclusion of the diversionary period.
(e) The defendant knowingly and voluntarily waives his Constitutional, statutory and legal rights to appeal his plea, conviction, restitution imposed, or sentence. This waiver of appeal includes, but is not limited to, an express waiver of the defendant's right to appeal his plea, conviction, restitution imposed, or sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742 or otherwise. The defendant further agrees not to contest his plea, conviction, restitution imposed, or sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255, except for non-waivable claims.
(f) The defendant further acknowledges that: (i) his plea of guilty is voluntary; (ii) no force, threats, promises or representations have been made to anybody, nor agreement reached, other than those set forth expressly in this Plea Agreement, to induce the defendant to plead guilty; and (iii) there have been no representations or promises from anyone as to whether the Court will permit the defendant to withdraw his plea at the time of sentencing, or what sentence the Court will impose.
(g) During the diversionary period, the defendant agrees that he: (1) pay restitution in the amount of $25,000.00 to the Desert Tortoise Preserve Committee, Inc. as nominee of the Bureau of Land Management, (2) provide proof of such payment to his attorney and the United States Attorney's Office for the Eastern District of California; (3) obtain all necessary grazing permits, pay all required fees and abide by all grazing permit stipulations prior to releasing livestock to be driven across or graze upon lands administered by the Bureau of Land Management, and shall direct accordingly any employee, designee, representative or associate assigned to monitor and care for such livestock on behalf of the defendant. Defendant shall be subject to any criminal, civil and administrative remedies provided by law for any future unauthorized grazing use of lands administered by the Bureau of Land Management, and that such remedies may include impoundment of livestock as provided by 43 CFR § 4150.4. Defendant acknowledges that the signed plea agreement shall serve as written notice by the Bureau of Land Management of intent to impound for all future unauthorized grazing violations as provided in 43 CFR § 4150.4-1(a). (4) report any contact with law enforcement to his attorney and the United States Attorney's Office for the Eastern District of California within 48 hours; (5) report any change of address to his attorney and the United States Attorney's Office for the Eastern District of California within 7 days; and (6) obey all laws. The term "obey all laws" as used herein means all federal, state and local laws. An offense that can be charged only as an infraction will not be considered a "violation of the law" within the meaning of this agreement.
(h) The defendant agrees that compliance with the above terms set forth in paragraph (2)(g) is to be determined at the sole discretion of the United States Attorney's Office for the Eastern District of California.
(i) The defendant agrees to waive all rights under the "Hyde Amendment," Section 617, P.L. 105-119 (Nov. 26, 1997), to recover attorneys' fees or other litigation expenses in connection with the investigation and prosecution of all charges in the above-captioned matter and of any related allegations (including without limitation any charges to be dismissed pursuant to this Agreement and any charges previously dismissed).
(j) If the defendant's conviction on the count to which he is pleading is ever vacated at the defendant's request and over the government's object, or his sentence is ever reduced at his request, the government shall have the right to: (1) prosecute the defendant on any of the counts to which he pleaded guilty; (2) reinstate any counts that may be dismissed under the agreement; and (3) file any new charges that would otherwise be barred by this agreement. The decision to pursue any or all of these options is solely in the discretion of the United States Attorney's Office. By signing this agreement, the defendant agrees to waive any objections, motions, and defenses he might have to the government's decision, including Double Jeopardy. In particular, he agrees not to raise any objections based on the passage of time with respect to such counts including, without limitation, any statutes of limitation or any objections based on the Speedy Trial Act or the Speedy Trial Clause of the Sixth Amendment.
If it is determined that the defendant has violated any provision of this Agreement or if the defendant successfully moves to withdraw his plea; (1) all statements made by the defendant to the government or other designated law enforcement agents, or any testimony given by the defendant before a grand jury or other tribunal, whether before or after his Agreement, shall be admissible in evidence in any criminal, civil, or administrative proceedings hereafter brought against the defendant; and (2) the defendant shall assert no claim under the United States Constitution, any statute, the Federal Rules of Criminal Procedure, Rule 410, of the Federal Rules of Evidence, or any other federal rule, that statements made by the defendant before or after this Agreement, or any leads derived therefrom, should be suppressed. By signing this Agreement, the defendant waives any and all rights in the foregoing, respects.
The preceding paragraph, 2(j), shall not apply if the government stipulates to defendant's withdrawal of his guilty plea under paragraph 3(b) of this agreement.
(a) The government agrees to recommend that the Court set this matter for a sentencing hearing on or before June 4, 2019, in order to permit the defendant to perform the conditions set forth in paragraph (2)(g) above.
(b) If, as determined at the sole discretion of the United States Attorney's Office for the Eastern District of California, the defendant fully complies with the terms set forth in paragraph (2)(g) above, the government agrees to: (i) stipulate to the withdrawal of the defendant's guilty plea; and (ii) move for dismissal of the complaint, with prejudice, at the time of sentencing.
The defendant has read the charges against him contained in the complaint, and those charges have been fully explained to his by his attorney. Further, the defendant fully understands the nature and elements of the crime in the complaint to which he is pleading guilty, together with the possible defenses thereto, and has discussed them with his attorney.
The elements of the crime of Allowing livestock or other privately owned or controlled animals to graze on or be driven across these lands without a permit or lease or other grazing use authorization and timely payment of grazing fees, as alleged in the Complaint, are as follows:
The defendant concedes that he will plead, and is pleading, guilty to the crime set forth in the complaint, because he is, in fact, guilty of that offense. The defendant also agrees that the following are the true and correct facts of this case:
The following is the maximum potential sentence which the defendant faces for each count:
COUNT ONE — THREE:
The defendant understands that by pleading guilty he surrenders certain rights, including the following:
The defendant understands that by pleading guilty he is waiving all of the rights set forth above, and acknowledges that his attorney has explained to him those rights and the consequences of his waiver of those rights.
The defendant understands that if the Court questions him under oath, on the record and in the presence of counsel, about the offense to which he has pleaded guilty, his answers, if false, may later be used against him in a prosecution for perjury.
This plea of guilty is freely and voluntarily made and not the result of force or threats or of promises apart from those set forth in this plea agreement. There have been no representations or promises from anyone as to what sentence this Court will impose.
(a) It is understood by the parties that the Sentencing Court is neither a party to nor bound by this agreement and the sentencing judge, pursuant to Rule of Criminal Procedure 11(d)(2)(B), may decline to permit defendant to withdraw his guilty plea at the time of sentencing, and is free to impose the maximum penalties as set forth in paragraph 6 even if defendant satisfies all of the terms and conditions of this agreement. Further, in making its sentencing decision, the Court may take into consideration any and all facts and circumstances concerning the defendant's criminal activities, including activities which may not have been charged in the complaint.
Defendant understands that the United States Probation Office is not a party to this agreement and may conduct an independent investigation of defendant's activities and his background. It may then prepare a presentence report which it will submit to the Court as its independent sentencing recommendation. In addition, the government will fully apprise the Probation Office, as well as the Court, of the full and true nature, scope and extent of the defendant's criminal activities, including information on his background and criminal history.
The Court ORDERS:
1. The plea agreement is ORDERED into effect with the following modifications:
2. The Court sets a status conference on May 7, 2019 at 9:00 a.m.
