Saturday, May 13th, 2006

Plea Vacated for Lack of Factual Basis Where Defendant, Charged with Cocaine Conspiracy, Allocuted Solely to Marijuana Conspiracy

United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew the type and quantity of drugs he was selling or carrying for purposes of sentencing under the enhanced penalty provisions of § 841(b), the same is not true of the conspiracy offense under § 846. In order for a defendant charged with drug conspiracy under § 846 to be sentenced under the enhanced penalties of § 841(b)(1)(A) for cocaine, for instance, the Government must prove to a jury that the particular defendant either knew or reasonably should have known that the conspiracy he joined involved distribution of five or more kilograms of cocaine. It is not enough that the conspiracy involved, as a factual matter, the distribution of five or more kilos of coke. United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (defendant liable for amount of drugs distributed by co-conspirators only if defendant knew about the quantity or if it was reasonably forseeable to him); accord United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).

Here, Adams was arrested and charged with an § 846 conspiracy involving 5 kilograms of cocaine, after 659 kilos of coke were found in a truck and after the driver told the Government that Adams recruited him to drive the truck. Adams pleaded guilty to this charge, even stipulating in a plea agreement that he should be sentenced as if five kilos of coke were involved. At his guilty plea, however, Adams maintained that he did not know that cocaine was going to be in the truck. Adams claimed that he thought that about 90 pounds of marijuana were going to be on the truck, not cocaine. The district judge nonetheless accepted his guilty plea, finding it sufficient that Adams knew that some kind of illegal drugs were going to be on the truck, and subsequently sentenced him to the 10-year minimum under 21 U.S.C. § 841 (b)(1)(A).

The Circuit vacates Adams’ plea, finding that it lacked a factual basis under Rule 11(b)(3) because Adams did not allocute sufficiently to the knowledge element in light of Martinez and because nothing in the record at the time of the plea otherwise filled this gap. The Circuit rejected the district court’s finding, made after a post-plea hearing held in response to Adams’ motion to withdraw his guilty plea, that Adams reasonably should have foreseen that more than five kilos of coke were at issue, on the ground that the factual-basis requirement can be met only by the defendant’s allocution or by “any facts on the record at the time of the plea proceeding.” Op. 12 (emphasis added); see id. 14 (citing United States v. Andrades, 169 F.3d 131, 134 (2d Cir. 1999), for proposition that “a sufficient factual basis must be determined at the time the plea is accepted, thus an after-the-fact hearing will not suffice”).

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