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United States v. Serrano-Montano

United States District Court, D. Arizona

May 26, 2017

United States of America, Plaintiff,
v.
Jose Alfredo Serrano-Montano, Defendant.

          ORDER

          Cindy K. Jorgensonr United States District Judge

         Pending before the Court is the issue of whether Fed.R.Crim.P. 11 was followed at the Change of Plea proceeding before the magistrate judge and whether the guilty plea of Jose Alfredo Serrano-Montano (“Serrano-Montano”) should be vacated for any non-compliance. These issues were raised and argued in Serrano-Montano's Objections to the Pre-Sentence Investigation Report (Docs. 124 and 125), the responses (Docs. 127 and 128), and the replies (Docs. 136 and 137). On May 5, 2017, the parties presented oral argument to the Court as to the issue of whether Serrano-Montano's plea of guilty complied with Fed.R.Crim.P. 11 and the ramifications of any errors or omissions during the change of plea proceeding.

         Factual and Procedural History

         On September 21, 2016, Serrano-Montano was charged by Superceding Indictment with Conspiracy to Possess with Intent to Distribute Marijuana and Possession with Intent to Distribute Marijuana. The Superceding Indictment alleges Serrano-Montano knowingly and intentionally combined, conspired, confederated, and agreed with others “to possess with intent to distribute 1, 000 kilograms or more of marijuana, that is, approximately 2, 801 kilograms of marijuana” and knowingly and intentionally “possess[ed] with intent to distribute 1, 000 kilograms or more of marijuana[.]” Superceding Indictment (Doc. 65), pp.1-2.

         On November 8, 2016, Serrano-Montano pleaded guilty to the charges in the Superceding Indictment. During the change of plea proceeding, the magistrate judge advised Serrano-Montano that each charge carried a maximum sentence of up to 20 years in prison, a fine up to $1 million, a period of supervised release of at least three years but up to lifetime, and a special assessment of $100. 11/8/16 Transcript (Doc. 110) (“TR”), pp. 5-6. The following occurred:

THE COURT: All right. Sir, Count 1 of the indictment alleges that beginning at a time unknown and continuing to on or about January 27th near Douglas, Arizona, that you and others did knowingly and intentionally combine, conspire, confederate, and agree with other people named in the indictment and with other persons unknown to the grand jury to possess with intent to distribute 1, 000 kilograms of marijuana or more, that is, approximately 2, 801 kilograms of marijuana, in violation of law.
Do you understand this charge?
THE DEFENDANT: Yes.
THE COURT: How do you plead to this charge?
THE DEFENDANT: Guilty.
THE COURT: Count 2 alleges that on January 25th, 2016, near Douglas, Arizona, that you did knowingly and intentionally possess with intent to distribute a thousand kilograms or more of marijuana, in violation of law.
Do you understand this charge?
THE DEFENDANT: Yes.
THE COURT: How do you plead to it?
THE DEFENDANT: Guilty.

Id. at 8. Further, the government summarized the factual basis:

MS. DRONZEK: Yes, Your Honor. The case in question, should this case be taken to trial, the government could prove beyond a reasonable doubt that on or about January 25th of 2016, through January 27th, 2016, at or near Skeleton Canyon, which is east of Douglas, in the District of Arizona, this defendant, Jose Alfredo Serrano-Montano, along with additional co-conspirators, were traveling in two quad cab trucks with camper shells and each truck contained marijuana bundles. Together the bundles of marijuana weighed about 2, 801 kilograms. And that this defendant knew the bundles he was transporting contained marijuana. He knew that the bundles inside the other vehicle also contained marijuana.
He had made an agreement with Alberto Alejandro Villalobos-Cheno, Luis Chavez-Drew, and Julio Cesar Vargas-De La Cruz, and other people to transport the marijuana from Mexico into the United States to a location in Tucson where it would be delivered to other unknown individuals. He intended to be paid.

Id. at 9. Additionally, the magistrate judge questioned Serrano-Montano regarding the offenses:

THE COURT: All right. Were you with this group that was bringing marijuana?
THE DEFENDANT: Yes.
THE COURT: And, of course, you were in the vehicle, one of those vehicles; ...

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