.4) Case Document 103 Filed 07/06/15 Page 1 of 9 US. Department of Justice Carmen M. Ortiz United States Attorney District of Massachusetts Main Reception: (6 7) 748?3100 John Joseph Moakley Untied Slates Court/1mm: I Courthouse Way Suite 9200 Boston. Massachusetts 02210 January 28, 2015 Thomas J. Iovieno Esq. 755 East Broadway, 3rd Floor South Boston, MA 02127 Re: United States v. Jose Alberto Tejeda ?I?urbi Criminal No. Dear Mr. Iovieno: This letter sets forth the Agreement between the United States Attorney for the District of Massachusetts (?the US. Attorney?) and your client, Jose Alberto Tejeda Turbi (?Defendant?), in the above-referenced case. The Agreement is as follows: 1. Change of Plea At the earliest practicable date, Defendant shall plead guilty to all counts in which he is named in the above-referenced Indictment: Count One, conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. 846, Count Two, distribution of heroin, in violation of 21 U.S.C. and Count Three, distribution of heroin, in violation of 21 U.S.C. 84l(a)(l). Defendant expressly and unequivocally admits that he committed the crimes charged in the Indictment, did so knowingly and intentionally, and is in fact guilty of those offense. Defendant also expressly and unequivocally admits that the conspiracy charged in Count One involved at least 100 grams of a mixture and substance containing a detectable amount of heroin, in violation of 21. U.S.C. and that at least 100 grams of heroin were attributable to and reasonably foreseeable by, Defendant. The US. Attorney agrees to dismiss the Indictment in Case Number 14-cr-10193, charging Defendant with Illegal Reentry of Deported Alien in violation of 8 U.S.C. 1326, following the imposition of sentence in l4-cr-10192, at the sentencing hearing. '0 Case Document 103 Filed 07/06/15 Page 2 of 9 2. Penalties Defendant faces the following mandatory minimum and maximum penalties on each count of the Indictment: incarceration for a maximum of 40 years and a mandatory minimum of ?ve years; supervised release for at least four years and up to life; a ?ne of $5,000,000; a mandatory special assessment of $100 as to each count; restitution; and forfeiture to the extent charged in the Indictment. 3. Stipulation to Deportation Defendant admits that he is not a citizen or national of the United States, and affirms that he is a native and citizen of_Mexico. .. Defendant understands and knowingly waives his right to a hearing before an Immigration Judge, or before any other authority under the Immigration and Nationality Act, on the question of his deportability or removability from the United States. In this regard, Defendant understands and knowingly waives his rights in connection with any administrative or judicial removal proceeding to examine the evidence against him, to present evidence on his own behalf, to cross-examine any witnesses presented by the government, and to appeal ?om a determination of deportability or removability. Defendant understands and knowingly waives his right to apply for any relief from deportability or removability from the United States that would otherwise be available to him. Defendant understands that execution of an order of removal against him may have the legal consequence under the immigration laws of temporarily or permanently barring him from reentering the United States. Defendant agrees and stipu1ates to accept a ?nal judicial order of deportation or removal knowing that it will result in his amenability to immediate deportation and removal ?'om the United States upon conviction and completion of any period of incarceration. Defendant agrees that the order of deportation or removal be issued for his deportation to the applicable country or to any other country as prescribed by the immigration laws and regulations of the United States of America. Defendant knowingly waives any and all rights to appeal, or to move to reopen or reconsider, or to seek to vacate, or to otherwise seek any judicial or administrative review of, the order of deportation or removal or the right of the United States Immigration and Customs Enforcement to enforce such order. Defendant waives any right to and agrees he will not seek any judicial or administrative stay of execution of the order of removal or deportation. Defendant waives any right to seek release from the custody of the ICE when ICE assumes such custody after conviction and his release from any period of incarceration and preparatory to arrangements for his deportation or removal from the United States. Defendant agrees he will in all ways c00perate with ICE officials in the surrendering of or applying for any travel documents, or in other formalities relating to his deportation or removal from the United States 2 40 Case Document 103 Filed 07/06/15 Page 3 of 9 and preparations therefor. 4. Fed. R. Crim. P. 1 110111 11C) Plea This plea agreement is made pursuant to Fed. R. Crim. P. and Defendant?s guilty plea will be tendered pursuant to that provision. In accordance with Rule if the District Court (?Court?) accepts this Agreement, the Court must include the agreed disposition in the judgment. If the Court rejects any aspect of this Agreement, the US. Attorney may deem the Agreement null and void. Defendant understands and acknowledges that he may not withdraw his plea of guilty unless the Court rejects this Agreement under Fed. R. Crim. P. 5. Sentencing Guidelines The parties agree jointly to take the following positions at sentencing under the United States Sentencing Guidelines or ?Guidelines?). The parties agree that Defendant?s total adjusted offense level under the Guidelines is calculated as follows: 0 in accordance with USSG Defendant?s base offense level is 24, because the charged conduct in Counts One, Two, and Three involved at least 100 grams of heroin but less than 400 grams of heroin; - in accordance with USSG ?3Bl.l, Defendant?s offense level is increased by three levels, because Defendant had an aggravated role in the offense in that Defendant was a manager or supervisor and the criminal activity involved ?ve or more participants or was otherwise extensive; in accordance with USSG based on Defendant?s prompt acceptance of personal responsibility for the offenses of conviction in this case, the adjusted offense level is reduced by three. The US. Attomey?s agreement that the disposition set forth below is appropriate in this case is based, in part, on Defendant?s prompt acceptance of personal responsibility for the offenses of conviction in this case. The US. Attorney may, at her sole option, be released from her commitments under this Agreement, including, but not limited to, her agreement that Paragraph 5 constitutes the appropriate disposition of this case, if at any time between Defendant?s execution of this Agreement and sentencing, Defendant: Fails to admit a complete factual basis for the plea; Fails to truthfully admit Defendant?s conduct in the offenses of conviction; (0) Falsely denies, or frivolously contests, relevant conduct for which 3 4 Case Document 103 Filed 07/06/15 Page 4 of 9 (0 0) Defendant is accountable under USSG ?lBl.3; Fails to provide truthful information about Defendant?s ?nancial status; Gives false or misleading testimony in any proceeding relating to the criminal conduct charged in this case and any relevant conduct for which Defendant is accountable under USSG ?lBl.3; Engages in acts that form a basis for ?nding that Defendant has obstructed or impeded the administration of justice under USSG ?3Cl Intentionally fails to appear in Court or violates any condition of release; Commits a crime; Transfers any asset protected under any provision of this Agreement; or Attempts to withdraw Defendant?s guilty plea. Nothing in this Agreement a?'ects the U.S. Attorney?s obligation to provide the Court and the U.S. Probation O?ice with accurate and complete information regarding this case. 6. Agreed Disposition Pursuant to Fed. R. Crim. P. the U.S. Attorney and Defendant agree that the following is a reasonable and appropriate disposition of this case: (0) incarceration for 60 months; a ?ne of $10,000 unless the Court ?nds that Defendant is not able and even with the use of a reasonable installment schedule, is not likely to become able to pay a fine; 48 months of supervised release; a mandatory special assessment of $300; no restitution; and. forfeiture as set forth. in Paragraph 10. Case Document 103 Filed 07/06/15 Page 5 of 9 7. Payment of Mandatory Special Assessment Defendant agrees to pay the mandatory special assessment to the Clerk of the Court on or before the date of sentencing, unless Defendant establishes to the satisfaction of the Court that Defendant is ?nancially unable to do so. 8. Waiver of Right to Appeal and to Bring Future Challenge (6) Defendant has conferred with his attorney and understands that he has the right to challenge his conviction in the United States Court of Appeals for the First Circuit (?direct appeal?). Defendant also understands that, in some circumstances, Defendant may be able to challenge his conviction in a future proceeding (collateral or otherwise), such as pursuant to a motion under 28 U.S.C. ?2255, 28 U.S.C. ?224l or 18 U.S.C. ?3582(c). Defendant waives any right to challenge Defendant?s conviction on direct appeal or in any future proceeding (collateral .or otherwise). Defendant has conferred with his attorney and understands that defendants ordinarily have a right to challenge in a direct appeal their sentences (including any orders relating to supervised release, ?nes, forfeiture, and restitution) and may sometimes challenge their sentences (including any orders relating to supervised release, ?nes, forfeiture, and restitution) in a future proceeding (collateral or otherwise) such as pursuant to 28 U.S.C. ?2255, 28 U.S.C. ?2241 or 18 U.S.C. ?3582. The rights that are ordinarily available to a defendant are limited when a defendant enters into a Rule agreement. In this case,?Defendant waives any rights Defendant may have to challenge the agreed-upon sentence (including any agreement relating to supervised release, ?nes, forfeiture, and restitution) on direct appeal and in a future proceeding (collateral or otherwise), such as pursuant to 28 U.S.C. ?2255 and 28 U.S.C. ?2241. Defendant also waives any right Defendant may have under 18 U.S.C. ?3582 to ask the Court to modify the sentence, even if the USSG are later amended in a way that appears favorable to Defendant. Likewise, Defendant agrees not to seek to be resentenced with the bene?t of any change to Defendant?s Criminal History Category that existed at the time of Defendant?s original sentencing. Defendant also agrees not to challenge the sentence in an appeal or future proceeding (collateral or otherwise) even if the Court rejects one or more positions advocated by any party at sentencing. In sum, Defendant understands and agrees that in entering into this Agreement, the parties intend that Defendant will receive the bene?ts of the Agreement and that the sentence will be ?nal. The US. Attorney agrees that she will not appeal the imposition by the Court of the sentence agreed to by the parties as set out in Paragraph 5, even if the Court rejects one or more positions advocated by either party at sentencing. 5 Case Document 103 Filed 07/06/15 Page 6 of 9 Notwithstanding the previous subparagraphs, Defendant reserves the right to claim that Defendant?s lawyer rendered ineffective assistance of counsel under Strickland v. Washington. 9. US. Probation Office Not Bound By Agreement The sentencing disposition agreed upon by the parties and their respective calculations under the USSG are not binding upon the United States Probation Office. I 0. Forfeiture Defendant understands that the Court will, upon acceptance of Defendant?s guilty plea, enter an order of forfeiture as part of Defendant?s sentence, and that the order of forfeiture may include assets directly traceable 'to Defendant?s offense, assets used to facilitate Defendant?s offense, substitute assets and/or a money judgment equal to the value of the property derived or otherwise involved in, the offense. Defendant also agrees to waive all constitutional, legal and equitable challenges (including direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with this Agreement. Defendant agrees not to challenge or seek review of any civil or administrative forfeiture of any property subject to forfeiture under this Agreement, and will not assist any third party with regard to such challenge or review. 11. Civil Liability By entering into this Agreement, the US. Attorney does not compromise any civil liability, including but not limited to any tax liability, Defendant may have incurred or may incur as a result of Defendant?s conduct and plea of guilty to the charges specified in Paragraph 1 of this Agreement. 12. Withdrawal of Plea By Defendant or Reiection of Plea by Court Should Defendant move to withdraw his guilty plea at any time, or should the Court reject the parties? agreed-upon disposition of the case or any other aspect of this Agreement, this Agreement shall be null and void at the option of the US. Attorney. In this event, Defendant agrees to waive any defenses based upon the statute of limitations, the constitutional protection against pre-indictment delay, and the Speedy Trial Act with respect to any and all charges that could have been timely brought or pursued as of the date of this Agreement. 13. Breach of Agreement If the US. Attorney determines that Defendant has failed to comply with any provision of this Agreement, has engaged in any of the activities set forth in Paragraph has violated any condition of Defendant?s pretrial release, or has committed any crime following Defendant?s execution of this Agreement, the US. Attorney may, at her sole option, be released from her 6 Case Document 103 Filed 07/06/15 Page 7 of 9 commitments under this Agreement in their entirety by notifying Defendant, through counsel or otherwise, in writing. The U.S. Attorney may also pursue all remedies available to her under the law, regardless whether she elects to be released from her commitments under this Agreement. Further, the U.S. Attorney may pursue any and all charges which otherwise may have been brought against Defendant and/or have been, or are to be, dismissed pursuant to this Agreement. Defendant understands that his breach of an obligation under this Agreement shall not give rise to grounds for withdrawal of Defendant?s guilty plea, but will give the U.S. Attorney the right to use against Defendant before any grand jury, at any trial or hearing, or for sentencing purposes, any statements that Defendant may make, and any information, materials, documents or objects that Defendant may provide to the government subsequent to this Agreement, without any limitation. In this regard, Defendant hereby waives any defense to any charges that Defendant might otherwise have based upon any statute of limitations, the constitutional protection against pre-indictment delay, or the Speedy Trial Act. 14. Who [8 Bound By Agreement This Agreement is limited to the U.S. Attorney for the District of Massachusetts, and cannot and does not bind the Attorney General of the United States or any other federal, state or local prosecutive authorities. Case Document 103 Filed 07/06/15 Page 8 of 9 15. Complete Agreement This letter contains the complete and only agreement between the parties relating to the disposition of this case. No promises, representations or agreements have been made other than those set forth in this letter. This Agreement supersedes prior understandings, if any, of the parties, whether written or oral. This Agreement can be modi?ed or supplemented only in a written memorandum signed by the parties or on the record in court. If this letter accurately re?ects the agreement between the U.S. Attorney and Defendant, please have Defendant sign the Acknowledgment of Agreement below. Please also sign below as Witness. Return the original of this letter to Assistant U.S. Attorney Michelle L. Wasserman. Very truly yours, CARMEN M. ORTIZ United States Attorney/- - .. JAMES . ,./Deputy Chief, Criminal Division