BRYAN SCHRODER Acting United States Attorney JACK S. SCHMIDT Assistant US. Attorney Federal Building US. Courthouse 709 9th Street, Room 937 PO. Box 21627 Juneau, Alaska 99802 Phone: (907) 796-0400 Fax: (907) 796-0409 Email: jack.schmidt@usdoj.gov IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA UNITED STATES OF AMERICA, No. Plaintiff, PLEA AGREEMENT vs. CHARLES EDWARD COTTEN JR., Defendant. Unless the parties jointly inform the Court in writing of any additional agreements, this document in its entirety contains the terms of the plea agreement between the defendant and the United States. This agreement is limited to the District of Alaska; it does not bind other federal, state, or local prosecuting authorities. Case Document 56 Filed 04/04/18 Page 1 of 18 I. SUMMARY OF AGREEMENT, FEDERAL RULE OF CRIMINAL PROCEDURE 11 A. Summary of Agreement The defendant agrees to plead guilty to the following count(s) of the Indictment in this case: Counts 1-4 Drug Distribution, in violation of 21 U.S.C. ?841(a)(1) and The parties agree to both recommend to the court the defendant be sentenced to 120 month imprisonment and to a ten year period of supervised release. The defendant also agrees to admit to the Forfeiture Allegation in the Indictment, as more specifically set forth below. The United States agrees not to prosecute the defendant further for any other offense related to the event(s) that resulted in the charge(s) contained in the Indictment. The defendant will waive all rights to appeal the conviction(s) and sentence imposed under this agreement. The defendant will also waive all rights to collaterally attack the conviction(s) and sentence, except on the grounds of ineffective assistance of counsel or the voluntariness of the plea(s). B. Federal Rule of Criminal Procedure 11 Unless the parties otherwise inform the Court in writing, Federal Rule of Criminal Procedure and (B) will control this plea agreement. Thus, the defendant may not withdraw from this agreement or the guilty plea(s) if the Court rejects the parties? sentencing recommendations at the sentencing hearing. U.S. v. CHARLES E. COTTEN JR. Page 2 of 18 Case Document 56 Filed 04/04/18 Page 2 of 18 II. CHARGES, ELEMENTS, FACTUAL BASIS, STATUTORY PENALTIES AND OTHER MATTERS AFFECTING SENTENCE, FORFEITURE, RESTITUTION, VOLUNTARY ABANDONMENT A. Charges The defendant agrees to plead guilty to the following count(s) of the Indictment: Count 1-4: Drug Distribution, a Violation of Title 21 U.S.C. 841(a)(1) and B. Elements The elements of the charge(s) to which the defendant is pleading guilty are as follows: Drug Distribution 1. On or about May 12, June 2, 6, and 7, 2017, the defendant knowingly and intentionally distributed methamphetamine to another person; 2. The defendant knew it was methamphetamine, or some other prohibited drug; 3. 5 or more grams of actual methamphetamine was involved on each occasion. US. v. CHARLES E. COTTEN JR. Page 3 of 18 Case Document 56 Filed 04/04/18 Page 3 of 18 C. Factual Basis The defendant admits the truth of the allegations in Count 1-4 of the Indictment and the truth of the following statement, and the parties stipulate that the Court may rely upon this statement to support the factual basis for the guilty plea(s) and for the imposition of the sentence: On or about May 12, June 2, 6, and 7, 2017, in Juneau, Alaska, Charles Edward Cotten Jr. sold methamphetamine to persons acting as a cooperating individuals under the direction of law enforcement. These four sales involved a total of 112 grams of actual methamphetamine and was facilitated by the use of a 1995 Black Harley Davidson AK lic# 6751MM, 1HD1BJL4SSY033050 in the distribution of the methamphetamine. On May 12, 2017, (Count 1), in a transaction which was audio recorded, a cooperating individual purchased 28 grams of actual methamphetamine from Charles Edward Cotten Jr. On June 2, 2017, (Count 2), in a transaction which was audio recorded, a cooperating individual purchased 27.949 grams of actual methamphetamine from Charles Edward Cotten Jr. and Ricky Stapler Lisk on the MN Northwind. The drugs from this transaction was transported to the WV Northwind on Cotten?s 1995 Black Harley Davidson US. v. CHARLES E. COTTEN JR. Page 4 of 18 Case Document 56 Filed 04/04/18 Page 4 of 18 On June 6, 2017, (Count 3), in a transaction which was audio recorded, the cooperating individual purchased 28.2 grams of actual methamphetamine from Charles Edward Cotten Jr. On June 7, 2017, (Count 4), in a transaction which was audio recorded, the cooperating individual purchased 27.9 grams of actual methamphetamine from Charles Edward Cotten Jr. Charles Edward Cotten Jr. knew that the substance that he sold to the cooperating individuals was methamphetamine. Charles Edward Cotten Jr. was arrested on October 20, 2017, and possessed a .45 caliber handgun located inside his vehicle and 391.9 grams of a mixture and substance containing a detectable amount of methamphetamine was in Cotten?s possession. Charles Edward Cotten Jr. was previously convicted in the case of State of Missouri v. Charles Edward Cotton, Jr. case number CR5 89-3 6F, for Manufacture of a Controlled Substance, a violation of 195.211, which is an offense punishable by a term of imprisonment in excess of one year. U.S. v. CHARLES E. COTTEN JR. Page 5 of 18 Case Document 56 Filed 04/04/18 Page 5 of 18 D. Statutory Penalties and Other Matters Affecting Sentence 1. Statutory Penalties The statutory penalties applicable to the charge(s) to which the defendant is pleading guilty, based on the facts to which the defendant will admit in support of the guilty p1ea(s), are as follows: Count 1-4: Drug Distribution 1) Imprisonment: 5 (Mandatory Minimum) to 40 years imprisonment; 2) Fine: a maximum of $5,000,000 ?ne; 3) Supervised Release: 4 years (Mandatory Minimum) to Life; 4) Special Assessment: $100. 2. Other Matters Affecting Sentence a. Conditions Affecting the Defendant?s Sentence The following conditions may also apply and affect the defendant?s sentence: 1) pursuant to Comment 7 of U.S.S.G. SE12, the Court may impose an additional ?ne to pay the costs to the government of any imprisonment and supervised release term; 2) pursuant to 18 U.S.C. 3612(f), unless otherwise ordered, if the Court imposes a ?ne of more than $2,500, interest will be charged on the balance not paid within 15 days after the judgment date; 3) upon violating any condition of supervised release, a further term of imprisonment equal to the period of the supervised release may be imposed, with no credit for the time US. v. CHARLES E. COTTEN JR. Page 6 of 18 Case Document 56 Filed 04/04/18 Page 6 of 18 already spent on supervised release; 4) the Court may order the defendant to pay restitution pursuant to the 18 U.S.C. 3663 and U.S.S.G. 5E1.1 and if18 U.S.C. 3663A (mandatory restitution for certain crimes) applies, the Court shall order the defendant to pay restitution. b. Payment of Special Assessment The defendant agrees to pay the entire special assessment in this case on the day the Court imposes the sentence. All payments will be by check or money order, and are to be delivered to the Clerk of Court, United States District Court, 222 W. 7th Ave. Box 4, Rm. 229, Anchorage, AK 99513-7564. c. Consequences of Felony Conviction Any person convicted of a federal felony offense may lose or be denied federal bene?ts including any grants, loans, licenses, food stamps, welfare or other forms of public assistance, as well as the right to own or possess any ?rearms, the right to vote, the right to hold public of?ce, and the right to sit on a jury. If applicable, any defendant who is not a United States citizen may be subject to deportation from the United States following conviction for a criminal offense and will not be permitted to return unless the defendant speci?cally receives the prior approval of the United States Attorney General. US. v. CHARLES E. COTTEN JR. Page 7 of 18 Case Document 56 Filed 04/04/18 Page 7 of 18 E. Restitution There is currently no identi?able restitution owed for the 0ffense(s) of conviction. F. Forfeiture Defendant admits the Forfeiture Allegation of the Indictment in their entirety, including any substitute asset and money judgment provisions, and the defendant admits: 1. The defendant?s interest, if any, in the following property is subject to forfeiture to the United States as property constituting proceeds of the offense of conviction (Count 1-4: Drug Distribution) and property facilitating the offense of conviction (Count 1-4: Drug Distribution): 1. 1995 Black Harley Davidson AK lic# 6751MM, Defendant hereby warrants that Defendant is the sole and exclusive owner of the listed listed above and that there are no claims to, or liens or encumbrances on any of the property listed above. Defendant agrees not to ?le a claim or withdraw any claim already ?led to any of the above referenced property in any forfeiture proceeding, administrative or judicial, which has been or may be initiated by the United States. Defendant further waives the right to notice of any forfeiture proceeding involving this property, agrees not to assist others in ?ling a claim to said property in any US. v. CHARLES E. COTTEN JR. Page 8 of 18 Case Document 56 Filed 04/04/18 Page 8 of 18 forfeiture proceeding, and will take all steps as requested by the United States to pass clear title to the above referenced property to the United States, including but not limited to, executing documents, and testifying truthfully in any forfeiture proceeding. Defendant further agrees to cooperate to ensure that assets subject to forfeiture are not sold, disbursed, wasted, hidden, or otherwise made unavailable for forfeiture. ADVISORY UNITED STATES SENTENCING GUIDELINES, GUIDELINE APPLICATION AGREEMENTS, SENTENCING RECOMMENDATIONS A. Advisory United States Sentencing Guidelines The Court must consult the advisory United States Sentencing Commission Guidelines as well as the factors set forth in 18 U.S.C. 3553(a) when considering the sentence to impose. The U.S.S.G. do not establish the statutory maximum or minimum sentence applicable to the offense(s) to which the defendant is pleading guilty. The U.S.S.G. are not mandatory and the Court is not bound to impose a sentence recommended by the U.S.S.G. B. Guideline Application Agreements The parties have no agreements on any guideline applications unless set forth below in this section. US. v. CHARLES E. COTTEN JR. Page 9 of 18 Case Document 56 Filed 04/04/18 Page 9 of 18 1. Acceptance of Responsibility If the United States concludes that the defendant has satis?ed the criteria set out in U.S.S.G. 3E1.1 and the applicable application notes, the United States agrees to recommend the defendant for a two level downward adjustment for acceptance of responsibility and, if U.S.S.G. 3E1 applies, to move for the additional one level adjustment for acceptance of responsibility. If, at any time prior to imposition of the sentence, the United States concludes that the defendant has failed to fully satisfy the criteria set out in U.S.S.G. 3E1.1, or has acted in a manner inconsistent with acceptance of responsibility, the United States will not make or, if already made, will withdraw this recommendation and motion. C. Sentencing Recommendations The United States Probation Of?ce will prepare the defendant?s pre-sentence report in which it will include a recommended calculation of the defendant?s sentence range under the U.S.S.G. Both the United States and the defendant will have the opportunity to argue in support of or in opposition to the guideline sentence range calculation the U.S.P.O. recommends, as well as present evidence in support of their respective sentencing arguments. The parties will jointly recommend a sentence of 120 months of imprisonment and ten years of supervised release. The parties are free to recommend to the Court their respective positions on the appropriate sentence to US. v. CHARLES E. COTTEN JR. Page 10 of 18 Case Document 56 Filed 04/04/18 Page 10 of 18 be imposed in this case based on the stipulated facts set forth in Section II C, any additional facts established at the imposition of sentence hearing, the applicable statutory penalty sections, the advisory U.S.S.G., and the sentencing factors set forth in 18 U.S.C. 3553. IV. ADDITIONAL AGREEMENTS BY UNITED STATES In exchange for the defendant?s guilty plea(s) and the Court?s acceptance of the defendant?s plea(s) and the terms of this agreement, the United States agrees that it will not prosecute the defendant further for any other offense now known arising out of the subject of the investigation related to the charges brought in the Indictment in this case and the defendant?s admissions set forth in Section II C. Provided, however, if the defendant?s guilty plea(s) or sentence is/are rejected, withdrawn, vacated, reversed, set aside, or modi?ed, at any time, in any proceeding, for any reason, the United States will be free to prosecute the defendant on all charges arising out of the investigation of this case including any charges dismissed pursuant to the terms of this agreement, which charges will be automatically reinstated as well as for perjury and false statements. The defendant hereby agrees that he/she waives any defense that the statute of limitations bars the prosecution of such a reinstated charge. U.S. V. CHARLES E. COTTEN JR. Page 11 of 18 Case Document 56 Filed 04/04/18 Page 11 of 18 V. WAIVER OF TRIAL RIGHTS, APPELLATE RIGHTS, COLLATERAL ATTACK RIGHTS, CLAIM FOR ATTORNEY FEES AND COSTS, AND RULE 410 A. Trial Rights Being aware of the following, the defendant waives these trial rights: If pleading to an Information, the right to have the charges presented to the grand jury prior to entering the guilty plea; The right to a speedy and public trial by jury on the factual issues establishing guilt or any fact affecting the mandatory minimum and statutory penalties, and any issue affecting any interest in any assets subject to forfeiture; The right to object to the composition of the grand or trial jury; The right to plead not guilty or to persist in that plea if it has already been made; The right to be presumed innocent and not to suffer any criminal penalty unless and until the defendant?s guilt is established beyond a reasonable doubt; The right to be represented by counsel at trial and if necessary to have a counsel appointed at public expense to represent the defendant at trial the defendant is not waiving the right to have US. v. CHARLES E. COTTEN JR. Page 12 of 18 Case Document 56 Filed 04/04/18 Page 12 of 18 counsel continue to represent the defendant during the sentencing phase of this case; The right to confront and cross examine witnesses against the defendant, and the right to subpoena witnesses to appear in the defendant?s behalf; The right to remain silent at trial, with such silence not to be used against the defendant, and the right to testify in the defendant?s own behalf; and The right to contest the validity of any searches conducted on the defendant?s property or person. B. Appellate Rights The defendant waives the right to appeal the conviction(s) resulting from the entry of guilty plea(s) to the charges set forth in this agreement. The defendant further agrees that if the Court imposes a sentence that does not exceed the statutory maximum penalties as set forth in section II above in this agreement, the defendant waives without exception the right to appeal on all grounds contained in 18 U.S.C. 3742 the sentence the Court imposes including forfeiture (if applicable) or terms or conditions of probation (if applicable) or supervised release, any ?nes or restitution. US. v. CHARLES E. COTTEN JR. Page 13 of 18 Case Document 56 Filed 04/04/18 Page 13 of 18 By waiving these rights, the defendant understands that the conviction(s) and sentence the Court imposes will be ?nal. No other court will conduct appellate review of the conviction(s) or the sentence. The defendant agrees that the appellate and collateral attack waivers contained within this agreement will apply to any U.S.C. 3582(c) modi?cations, as well as the district court?s decision to deny any such modi?cation. Should the defendant ?le a notice of appeal in violation in this agreement, it will constitute a material breach of the agreement. The government is free to reinstate any dismissed charges, and withdraw any motions for downward departures, or sentences below the mandatory minimum made pursuant to 18 U.S.C. 3553(e). C. Collateral Attack Rights The defendant agrees to waive all rights to collaterally attack the resulting conviction(s) and/or sentence including forfeiture (if applicable) or terms or conditions of probation (if applicable) or supervised release, and any ?nes or restitution the Court imposes. The only exceptions to this collateral attack waiver are as follows: 1) any challenge to the conviction or sentence alleging ineffective assistance of counsel - based on information not now known to the defendant and which, in the exercise of reasonable diligence, could not be known US. v. CHARLES E. COTTEN JR. Page 14 of 18 Case Document 56 Filed 04/04/18 Page 14 of 18 by the defendant at the time the Court imposes sentence; and 2) a challenge to the voluntariness of the defendant?s guilty plea(s). D. Claim for Attorney Fees and Costs Because this is a negotiated resolution of the case, the parties waive any claim for the award of attorney fees and costs from the other party. E. Evidence Rule 410 and Fed. R. Crim. P. 11(1) By signing this agreement, the defendant admits the truth of the facts in the Factual Basis portion of this agreement set forth in Section II C. The defendant agrees that the statements made by him in signing this agreement shall be deemed usable and admissible against the defendant as stipulations in any hearing, trial or sentencing that may follow, even if the defendant fails to enter a guilty plea pursuant to this agreement. The foregoing provision acts as a modification, and express waiver, of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 1 VI. ADEQUACY OF THE AGREEMENT Pursuant to Local Criminal Rule 11.2 and (8), this plea agreement is appropriate in that it conforms with the sentencing goals that would otherwise be applicable to the defendant?s case if the defendant had gone to trial and had been convicted on all counts in the charging instrument. U.S. v. CHARLES E. COTTEN JR. Page 15 of 18 Case Document 56 Filed 04/04/18 Page 15 of 18 VII. THE ACCEPTANCE OF THE TERMS OF THIS PLEA AGREEMENT 1, CHARLES E. COTTEN R., the defendant, af?rm this document contains all of the agreements made between me with the assistance of my attorney and the United States regarding my p1ea(s). There are no other promises, assurances, or agreements the United States has made or entered into with me that have affected my decision to enter any plea of guilty or to enter into this agreement. If there are any additional promises, assurances, or agreements, I and the United States will jointly inform the Court in writing before I enter my guilty p1ea(s). I understand that no one, including my attorney, can guarantee the outcome of my case or what sentence the Court may impose if I plead guilty. If anyone, including my attorney, has done or said anything other than what is contained in this agreement, I will inform the Court when I stand before it to enter my plea. If there were, I would so inform the Court. I enter into this agreement understanding and agreeing that the conditions set forth herein are obligatory and material to this agreement and that any failure on my part to ?al?ll these obligations will constitute a material breach of this agreement. If I breach this agreement, I agree the United States, in its sole discretion, may withdraw from this agreement and may reinstate prosecution against me on any charges arising out of the investigation in this matter. If my compliance with the terms of this plea agreement becomes an issue, at an US. v. CHARLES E. COTTEN JR. Page 16 of 18 Case Document 56 Filed 04/04/18 Page 16 of 18 appropriate hearing, during which I agree any of my disclosures will be admissible, the Court will determine whether or not I have violated the terms of this agreement. I understand the government?s burden to prove a breach will be by a preponderance of the evidence. I understand the Court will ask me under an oath to answer questions about the 0ffense(s) to which I am pleading guilty and my understanding of this plea agreement. I understand that I may be prosecuted if I make false statements or give false answers and may suffer other consequences set forth in this agreement. I have read this plea agreement carefully and understand it thoroughly. I know of no reason why the Court should ?nd me incompetent to enter into this agreement or to enter my plea(s). I enter into this agreement knowingly and voluntarily. I understand that anything that I discuss with my attorney is privileged and con?dential, and cannot be revealed without my permission. Knowing this, I agree that this document will be filed with the Court. I am fully satis?ed with the representation given me by my attorney and am prepared to repeat this statement at the time I stand before the Court and enter my guilty plea(s). My attorney and I have discussed all possible defenses to the charges to which I am pleading guilty. My attorney has investigated my case and followed up on any information and issues I have raised to my satisfaction. My attorney has taken the time to fully explain the legal and factual issues involved in US. v. CHARLES E. COTTEN JR. 1 Page 17 of 18 Case Document 56 Filed 04/04/18 Page 17 of 18 my case to my satisfaction. We have discussed the statutes applicable to my offense and sentence as well as the possible effect the U.S.S.G. may have on my sentence. Based on my complete understanding of this plea agreement, I therefore admit that I am guilty of Counts 1-4 of the Indictment and nal Forfeiture Allegatlon. DATED: CHARLES E. COTTEN JR. __Q??sndent As counsel for the defendant, I have conveyed all written plea offers andl have discussed the terms of this plea? agreement with the defendant, have fully explained the charge(s) to which the defendant is pleading guilty and the necessary elements, all possible defenses, and the consequences of a guilty plea to a felony. Based on these discussions, I have no reason to doubt that the defendant is knowingly and voluntarily entering into this agreement and entering a plea of guilty. I know of no reason to question the defendant?s competency to make these decisions. If, prior to the imposition of sentence, I become aware of any reason to question the defendant?s competency to enter into this plea agreement or to enter a plea of guilty, I will immediately inform the court. z/ DATED: 5 ?50 i (refit/{ZACK MICHAEL MOBERLY Attorney for COTTEN JR. On behalf of the United States, I accept the defendant?s offer to plead guilty under the terms of this plea agreement. .. I I .L .4 DATED: ii?iig . k; Un' ed States of America cting United States Attorney U.S. V. CHARLES E. COTTEN JR. Page 18 of 18 Case Document 56 Filed 04/04/18 Page 18 of 18