Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.3 Page 1 of 12 ' ( i ~, !~ ~....., A ,} ,J 1'. . ·;. I ~ :\ .. ,'. )1\~U l\li'"\ l ~ 1 ROBERT S. BREWER, JR. United States Attorney 2 OLEKSANDRA Y. JOHNSON Assistant U.S. Attorney 3 California State Bar No. 265442 United States Attorney's Office 4 880 Front Street, Room 6293 San Diego, California 92101-8893 5 Telephone: (619) 546-9769 Oleksandra.Johnson@usdoj.gov ,• - , , c· :·~ ,'"·', "·,_1 ,l,.,r 6 7 Attorneys for Plaintiff UNITED STATES OF AMERICA 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 )q lJ<_ O:J-~- ft Plaintiff, PLEA AGREEMENT v. 12 13 Case No. JASON ANDREW MCGILVRAY, Defendant. 14 15 16 IT IS HEREBY AGREED between the plaintiff, UNITED STATES OF AMERICA, 17 through its counsel, Robert S. Brewer, Jr., United States Attorney, and 18 Oleksandra Y. Johnson, Assistant United States Attorney, and defendant, 19 JASON ANDREW MCGILVRAY, with the advice and consent of Julie H. Ledesma, 20 Esq., counsel for defendant, as follows: 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 OYJ: 7130119 RECEIVED IN DOCKETING AUG 2 6 2019 Def. I n i t i a l s ~ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.4 Page 2 of 12 1 I 2 THE PLEA 3 A. 4 Defendant agrees to waive Indictment and plead guilty to a single- 5 6 7 8 9 THE CHARGE count Information charging defendant with: On or about February 16, 2019, within the Southern District of California, defendant JASON ANDREW MCGILVRAY, while acting under color of law, as a United States Border Patrol Agent, struck B.S.S., willfully depriving him of the right, secured and protected by the Cons ti tut ion and laws of the United States, to be free from unreasonable use of force, in violation of Title 18, United States Code, Section 242. 10 II 11 NATURE OF THE OFFENSE 12 A. 13 The offense to which defendant is pleading guilty has the following 14 ELEMENTS EXPLAINED elements: 15 1. The defendant was acting under color of law when committed the acts charged in the information; 2. The defendant deprived B.S.S. of his right to be free from unreasonable force, which is a right secured by the Constitution or laws of the United States; 3. The defendant acted willfully, that is, the defendant acted with a bad purpose, intending to deprive B.S.S. of that right. 16 17 18 19 20 B. he ELEMENTS UNDERSTOOD AND ADMITTED - FACTUAL BASIS 21 Defendant has fully discussed the facts of this case with defense 22 counsel. Defendant has committed each element of the crime and admits 23 that there is a factual basis for this guilty plea. The following facts 24 are true and undisputed: 25 26 1. On or about February 16, 2019, defendant was a Border Patrol Agent assigned to the Calexico Border Patrol Station in Calexico, California. 2. On the same date, while on duty, Defendant encountered B.S.S., who attempted to enter the United States by 27 28 2 Def. Initials. 19CR ------ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.5 Page 3 of 12 jumping the international border Well, Imperial County, California. 1 2 3. 3 4 fence near Gordon's On the same date, after B.S.S. was apprehended by Border Patrol Agents and placed in custody, Defendant willfully struck B.S.S. in the face with the intent to deprive B.S.S. of his constitutional right against unreasonable force during search and seizure. 5 6 III 7 PENALTIES The 8 9 crime to which Defendant is pleading guilty carries the following penalties: 10 A. a maximum 1 year in prison; 11 B. a maximum $100,000 fine; 12 C. a $25 special assessment; and 13 D. a maximum period of supervised release up to l year. 14 IV 15 DEFENDANT'S WAIVER OF TRIAL RIGHTS AND UNDERSTANDING OF CONSEQUENCES 16 This guilty plea waives Defendant's right at trial to: 17 A. Continue to plead not guilty and require the Government to prove the elements of the crime beyond a reasonable doubt; 19 B. A speedy and public trial by jury; 20 C. The assistance of counsel at all stages of trial; 21 D. Confront and cross-examine adverse witnesses; 22 E. Testify and present evidence and to have witnesses testify on behalf of defendant; and F. Not testify or have failure to testify. 18 23 24 25 II 26 II 27 II 28 II any adverse 3 inferences drawn from the Def. Initials (19CR ------ ~ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.6 Page 4 of 12 1 V 2 3 DEFENDANT ACKNOWLEDGES NO PRETRIAL RIGHT TO BE PROVIDED WITH IMPEACHMENT AND AFFIRMATIVE DEFENSE INFORMATION 4 Any information establishing the factual innocence of Defendant 5 known to the undersigned prosecutor in this case has been turned over 6 to Defendant. The Government will continue to provide such information 7 establishing the factual innocence of defendant. 8 9 If this case proceeded to trial, the Government would be required to provide impeachment information for its witnesses. raised affirmative Defendant 11 required to provide information in its possession that supports such a 12 defense. 13 information, if any, and defendant waives any right to this information. 14 Defendant 15 collateral attack on the existence of this information. pleading will not guilty, attempt to defense, defendant withdraw the will the Government not be guilty 16 VI 17 DEFENDANT'S REPRESENTATION THAT GUILTY PLEA IS KNOWING AND VOLUNTARY 18 would if 10 By an In addition, provided plea or be this file a Defendant represents that: 19 A. Defendant has had a full opportunity to discuss all the facts and circumstances of this case with defense counsel and has a clear understanding of the charges and the consequences of this plea. By pleading guilty, Defendant may be giving up, and rendered ineligible to receive, valuable government benefits and ci vie rights, such as the right to vote, the right to possess a firearm, the right to hold office, and the right to serve on a jury. The conviction in this case may subject Defendant to various collateral consequences, including but not limited to revocation of probation, parole, or supervised release in another case; debarment from government contracting; and suspension or revocation of a professional license, none of which can serve as grounds to withdraw Defendant's guilty plea; B. No one has made any promises or offered any rewards in return for this guilty plea, other than those contained in this agreement or otherwise disclosed to the court; 20 21 22 23 24 25 26 27 28 4 Def. Initials 19CR L ~ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.7 Page 5 of 12 C. No one has threatened Defendant induce this guilty plea; and, D. Defendant is pleading guilty because Defendant is guilty and for no other reason. 1 2 or Defendant's family to 3 VII 4 AGREEMENT LIMITED TO U.S. ATTORNEY'S OFFICE, SOUTHERN DISTRICT OF CALIFORNIA 5 This plea agreement 6 is limited to the United States Attorney's 7 Office for the Southern District of California, 8 other authorities in any type of matter, 9 bring this plea agreement 10 to the and cannot bind any although the Government will attention of other authorities requested by Defendant. 11 VIII 12 APPLICABILITY OF SENTENCING GUIDELINES 13 14 if The sentence imposed will be based on the factors set forth in 18 U.S.C. § 3553(a). In imposing the sentence, the sentencing judge 15 must consult the United States Sentencing Guidelines (Guidelines) and 16 take them in to account . 17 defense counsel and understands that the Guidelines are only advisory, 18 not mandatory. 19 severe than otherwise applicable under the Guidelines, up to the maximum 20 in the statute of conviction. 21 sentencing without a pre sentence report. 22 finds 23 exercise of sentencing authority pursuant to 18 U.S.C. § 3553. 24 has been advised and understands that should the sentencing judge order 25 a presentence report, 26 the plea. 27 to provide complete and accurate facts to the district court and the 28 U.S. Probation Office. Defendant has discussed the Guidelines with The Court may impose a sentence more severe or less The parties will sufficient information in the recommend immediate The Court may agree if it record to enable the meaningful Defendant defendant nevertheless has no right to withdraw Nothing in this plea agreement limits the Government's duty 5 Def. Initials 19CR- - - - - - Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.8 Page 6 of 12 1 IX 2 SENTENCE IS WITHIN SOLE DISCRETION OF JUDGE This plea agreement is made pursuant to Federal Rule of Criminal 3 4 Procedure ll(c) (1) (B). 5 the sentencing judge who may impose the maximum sentence provided by 6 statute. 7 be. 8 as to what sentence Defendant will receive. 9 sentence by defense counsel is not a promise and is not binding on the The sentence is within the sole discretion of It is uncertain at this time what Defendant's sentence will The Government has not made and will not make any representation Any estimate of the probable Any recommendation made by the Government at sentencing is also 10 Court. 11 not binding on the Court. 12 of the parties' sentencing recommendations, Defendant will not withdraw 13 the plea. If the sentencing judge does not follow any 14 X 15 PARTIES' SENTENCING RECOMMENDATIONS 16 A. 17 Although the Guidelines are only advisory and just one factor the SENTENCING GUIDELINE CALCULATIONS 18 Court will consider under 18 U.S.C. § 3553(a) in imposing a sentence, 19 the parties will 20 Specific Offense Characteristics, Adjustments, and Departures: jointly recommend the following Base Offense Level, 21 1. Base Offense Level [USSG § 2Hl .1 (a) (3)] 10 22 2. Specific Offense Characteristic [USSG §2Hl. 1 (b) ( 1) ] +6 3. Acceptance of Responsibility [§ 3El.1] 23 24 B. -3 ACCEPTANCE OF RESPONSIBILITY 25 Despite paragraph A above, the Government need not recommend an 26 adjustment for Acceptance of Responsibility if Defendant engages in 27 conduct inconsistent with acceptance of responsibility including, but 28 not limited to, the following: 6 Def. Initials 19CR L - -~ ---- Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.9 Page 7 of 12 1. Fails to truthfully admit a complete factual basis as stated in the plea at the time the plea is entered, or falsely denies, or makes a statement inconsistent with, the factual basis set forth in this agreement; 3 2• Falsely denies prior criminal conduct or convictions; 4 3• Is untruthful with the Government, the Court or probation officer; or 4. Breaches this plea agreement in any way. 1 2 5 6 C. 7 FURTHER ADJUSTMENTS AND SENTENCE REDUCTIONS INCLUDING THOSE UNDER 18 U.S.C. § 3553 8 Defendant may request or recommend additional downward adjustments, 9 departures, or variances from the Sentencing Guidelines under 18 U.S.C. 10 § 3553. The Government will oppose any downward adjustments, departures, 11 or variances not set forth in Section X, paragraph A above. 12 D. 13 The parties have no agreement as to Defendant's Criminal History 14 NO AGREEMENT AS TO CRIMINAL HISTORY CATEGORY Category. 15 E. 16 The facts in the "factual basis" paragraph of this agreement are 17 true and may be considered as "relevant conduct" under USSG § lBl.3 and 18 as 19 §3553(a)(l). 20 F. PARTIES' RECOMMENDATIONS REGARDING CUSTODY 21 The Government 22 the "FACTUAL BASIS" AND "RELEVANT CONDUCT" INFORMATION nature and circumstances agrees to of the recommend offense one year under 18 U.S.C. probation as the sentence in this case. 23 G. 24 The parties will SPECIAL ASSESSMENT jointly recommend that defendant pay a in the amount of $25. 00 to be paid forthwith at special 25 assessment time of 26 sentencing. 27 the Clerk of the District Court by bank or cashier's check or money 28 order made payable to the "Clerk, United States District Court." The special assessment shall be paid through the office of 7 Def. Initials 19CR Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.10 Page 8 of 12 1 H. 2 The Government is free to recommend a period of supervised release. SUPERVISED RELEASE 3 If the Court imposes a term of supervised release, 4 seek to reduce or terminate early the term of supervised release until 5 Defendant has 6 release and has fully paid and satisfied any special assessments, fine, 7 criminal forfeiture judgment and restitution judgment. served at least two-thirds of the Defendant will not term of supervised AGREEEMENT TO RESIGN AND NOT APPLY 8 I. 9 Defendant agrees to voluntarily resign from his current employment 10 with the U.S. government and terminate his security clearance. In doing 11 so, or remedies 12 available directive, policy, 13 regulation, 14 employment or (2) any adverse security determination made by the United 15 States Government 16 revocation of 17 approval). Defendant further agrees to not seek or apply for a position 18 as a federal law enforcement officer or agent thereafter. he further to agrees him to waive pursuant to any and all Executive Order, or law to challenge or appeal concerning the any security ( 1) defendant clearance, procedures the resignation of his (including the denial security approval, or or access 19 20 XI 21 DEFENDANT WAIVES APPEAL AND COLLATERAL ATTACK 22 Defendant waives (gives up) all rights to appeal and to collaterally 23 attack every 24 includes, 25 conviction 26 argument that the facts of this case do not constitute the crime charged. 27 The 28 conviction or sentence on the basis that defendant received ineffective only but or aspect is of not the limited Defendant's exception is conviction to, any prosecution that defendant 8 and sentence. argument is may that This the statute unconstitutional collaterally waiver and attack of any the Def. I n i t i a ~ 19CR ------ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.11 Page 9 of 12 1 assistance of counsel. If defendant appeals, the Government may support 2 on appeal the sentence or restitution order actually imposed. XII 3 BREACH OF THE PLEA AGREEMENT 4 5 Defendant and Defendant's attorney know the terms of this agreement 6 and shall raise, before the sentencing hearing is complete, 7 that the Government has not complied with this 8 such claims shall be deemed waived 9 despite awareness that the claim could be raised), cannot later be made 10 to any court, 11 of this agreement. (that is, and if later made to a court, agreement. any claim Otherwise, deliberately not raised shall constitute a breach 12 Defendant breaches this agreement if defendant violates or fails 13 to perform any obligation under this agreement. The following are non- 14 exhaustive examples of acts constituting a breach: 15 A. Failing to plead guilty pursuant to this agreement; 16 B. Failing to fully accept responsibility Section X, paragraph B, above; C. Failing to appear in court; D. Attempting to withdraw the plea; E. Failing to abide by any court order related to this case; F. Appealing (which occurs if a notice of appeal is filed) or collaterally attacking the conviction or sentence in violation of Section XI of this plea agreement; or G. Engaging in additional criminal conduct arrest until the time of sentencing. 17 18 19 20 21 22 23 24 If Defendant breaches this plea agreement, as established from the time in of Defendant will not be 25 able to enforce any provisions, 26 all 27 Government may proceed to sentencing but recommend a different sentence 28 than what it agreed to recommend above. its obligations under and the Government will be relieved of this plea 9 agreement. For example, the Or the Government may pursue Def. Ini tial~c-::-:::::' 19CR Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.12 Page 10 of 12 1 any 2 dismissed, or not filed as a result of this agreement (Defendant agrees 3 that 4 indefinitely as of the date all parties have signed this 5 Defendant also waives any double jeopardy defense to such charges). In 6 addition, the Government may move to set aside defendant's guilty plea. 7 Defendant may not withdraw the guilty plea based on the Government's 8 pursuit of remedies for Defendant's breach. 9 charges including any statute of Additionally, those that limitations were dismissed, relating to such promised charges is statements made by Defendant, under oath, 11 (before either a Magistrate Judge or a District Judge); be tolled agreement; if Defendant breaches this plea agreement: 10 to (i) any at the guilty plea hearing (ii) the factual 12 basis statement in Section II.Bin this agreement; and (iii) any evidence 13 derived from such statements, 14 prosecution of, 15 prosecution of the charge(s) that is the subject of this plea agreement 16 or any charge(s) 17 part of this agreement, 18 Defendant. 19 intelligently waives any argument that the statements and any evidence 20 derived from the statements should be suppressed, cannot be used by the 21 Government, 22 any statute, Rule 410 of the Federal Rules of Evidence, 23 the Federal Rules of Criminal Procedure, and any other federal rule. are admissible against defendant in any or any action against, defendant. This but later pursues because of a breach by the Additionally, Defendant knowingly, voluntarily, 25 CONTENTS AND MODIFICATION OF AGREEMENT 27 parties and or are inadmissible under the United States Constitution, XIII This the that the prosecution agreed to dismiss or not file as 24 26 includes plea and agreement supersedes embodies any other the entire agreement, agreement written Rule ll(f) between or oral. of the No 28 10 Def. I n i t i a ~ 19CR ------ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.13 Page 11 of 12 1 modification of this plea agreement shall be effective unless in writing 2 signed by all parties. 3 XIV 4 DEFENDANT AND COUNSEL FULLY UNDERSTAND AGREEMENT By signing this agreement, defendant certifies that defendant has 5 6 read it (or that it has been read to defendant in defendant's native 7 language) . 8 defense counsel and fully understands its meaning and effect. 9 II 10 II 11 II 12 II 13 II 14 II 15 II 16 II 17 II 18 II 19 II 20 II 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II Defendant has discussed the 11 terms of this agreement with Def. I n i t i a l ~ 19CR_ _ _ __ Case 3:19-cr-03222-AGS Document 5 Filed 08/22/19 PageID.14 Page 12 of 12 1 xv 2 DEFENDANT SATISFIED WITH COUNSEL Defendant 3 has consulted with counsel and is satisfied with 4 counsel's representation. This is defendant's independent opinion, and 5 defendant's counsel did not advise defendant about what to say in this 6 regard. Respectfully submitted, 7 ROBERTS. BREWER, JR. United States Attorney 8 9 10 ~-J-O_H_N_S-ON _ _ _ _ _ __ DATED Assistant U.S. Attorney 11 ~-~ ¥/1 I2D/&J 12 DATED' I Defense Counsel 13 14 15 IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREE, I SWEAR UNDER PENALTY OF PERJURY THAT THE FACTS IN THE "FACTUAL BASIS" PARAGRAPH ABOVE ARE TRUE. iu't / 16 '20(0.. 17 DAT 18 Approved b y : ~ I : 4:p~ 21 22 J A ~ MCILVRAY Defendant ~ Assistant U.S. Attorney Rev. 6/27/2017 JSS:dca 23 24 25 26 27 28 12 Def. I n i t i a l s ~ 19CR ------