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IN THE DISTRICT COURT OF THE UNITED STATES
This PLEA AGREEMENT is made this 22nd day of April,
2008, between the United States of America, as represented by United States
Attorney IN CONSIDERATION of the mutual promises made herein, the parties hereto agree as follows: 1. The Defendant agrees to plead guilty to Count 7 of the Indictment now pending, which charges MAIL FRAUD, a violation of Title 18, United States Code, Section 1341. In order to sustain its burden of proof as to this offense, the United States is required to prove that:
The maximum sentence for a violation of Count 7 of the Indictment is a fine of $250,000 or double the gain or loss from the crime (whichever is greater) (18 U.S.C. § 3571) and/or imprisonment for 5 years, a term of supervised release of 3 years (18 U.S.C. § 3583), and a special assessment of $100 (18 U.S.C. § 3013). 2. The Defendant agrees to provide detailed financial information to the United States Probation Office prior to sentencing. The Defendant further agrees to enter into the Bureau of Prisons Inmate Financial Responsibility Program if sentenced to a term of incarceration with an unsatisfied monetary penalty. The Defendant further understands and agrees that any monetary penalty imposed is not dischargeable in bankruptcy.
3. Provided the Defendant complies with all the terms of this Agreement, the United States agrees to move to dismiss the remaining counts of the Indictment at sentencing. The Defendant understands that the Court may consider these dismissed counts as relevant conduct pursuant to § 1B1.3 of the United States Sentencing Guidelines. 4. The Defendant understands that the matter of sentencing is within the sole discretion of the Court and that the sentence applicable to Defendant's case will be imposed after the Court considers as advisory the United States Sentencing Commission Guidelines, Application Notes and Policy Statements, as well as the factors set forth in Title 18, United States Code, Section 3553(a). The Defendant also understands that Defendant's sentence has not yet been determined by the Court, and that any estimate of a probable sentencing range Defendant may have received from Defendant's attorney, the United States or the United States Probation Office is only a prediction, not a promise, and is not binding on the United States, the Probation Office or the Court. The Defendant further understands that the United States retains the right to inform the Court of any relevant facts, to address the Court with respect to the nature of the offense, to respond to questions raised by the Court, to correct any inaccuracies or inadequacies in the presentence report, to respond to any statements made to the Court by or on behalf of the Defendant and to summarize all evidence which would have been presented at trial to establish a factual basis for the plea. 5. The Defendant agrees that all facts that determine her offense level under the Guidelines and pursuant to any mandatory minimum (including facts that support any specific offense characteristic or other enhancement or adjustment) can be found by the Court at sentencing by a preponderance of the evidence standard and the Court may consider any reliable evidence, including hearsay. By executing this Agreement, the Defendant understands that she waives any argument that facts that determine her offense level under the Guidelines and pursuant to any mandatory minimum should be alleged in an Indictment and found by a jury beyond a reasonable doubt. 6. The Defendant understands that the obligations of the United States within the Plea Agreement are expressly contingent upon the Defendant abiding by federal and state laws and complying with the terms and conditions of any bond executed in this case. 7. In the event that the Defendant fails to comply with any of the provisions of this Agreement, either expressed or implied, it is understood that the United States will have the right, at its sole election, to void all of its obligations under this Agreement and the Defendant will not have any right to withdraw her plea of guilty to the offense(s) enumerated herein. 8. The United States and the Defendant understand that the Court retains the complete discretion to accept or reject the recommended sentence provided for in Paragraphs 9, 10, and 11 of this Plea Agreement. The Defendant understands that, as provided in Fed. R. Crim. P. 11(c)(3)(B), if the Court does not impose a sentence consistent with the recommendations contained in this Agreement, she nevertheless has no right to withdraw her plea of guilty. 9. The United States and the Defendant agree that the 2002 Federal
Sentencing Guidelines are applicable to this case and recommend that the
following sentencing calculation be adopted by the Court:
Acceptance of Responsibility Adjusted Offense Level 10. The United States and the Defendant recommend that the Court impose an
appropriate sentence of incarceration at the LOW END of the advisory
Guidelines range, and, based on the Defendant's present mental health
condition, request the Court to recommend that the place of confinement be
FMC Carswell, FMC Lexington, or a similar facility, and that the Defendant
be released following the imposition of sentence to allow her to self-surrender
to the assigned correctional facility on a date specified by the Court.
11. The United States and the Defendant recommend that the Court impose a
fine only to the extent that it will not impair the ability of the Defendant to
make restitution. 18 U.S.C. § 3572(b).
12. The United States and the Defendant agree that there exists no aggravating
or mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the U.S. Sentencing Commission in formulating the
Sentencing Guidelines justifying a departure pursuant to U.S.S.G. § 5K2.0.
13. The United States and the Defendant also agree not to seek or support any
sentence outside of the recommended Guidelines range detailed above in
Paragraph 9 nor any Guidelines adjustment for any reason that is not set
forth in this Plea Agreement.
14. The Unites States and the Defendant further agree that the recommended
sentence set forth in this Plea Agreement is reasonable.
15. The Defendant agrees to immediately forfeit to the United States any and all
interests in any and all assets and property, real and personal, that
constitute or are derived from proceeds traceable to the commission of all
counts charged in the Indictment, not only the single count to which the
Defendant is pleading guilty. These proceeds include, but are not limited to,
the sum of $468,496.00 in United States currency, and constitute the
proceeds the Defendant obtained, directly or indirectly, as the result of her
violations of 18 U.S.C. §§ 1341 and 1343 as charged in Counts 1 through 12.
The assets include, but are not limited to, the following:
16. The Defendant acknowledges that each asset covered by this Plea Agreement
is subject to forfeiture pursuant to 21 U.S.C. § 853, as incorporated by 18
U.S.C. § 981(a)(1)(c), 18 U.S.C. § 982(b)(1), and 29 U.S.C. § 2461(c) as
property constituting, or derived from, proceeds obtained directly or
indirectly, as a result of the violation(s) to which the Defendant is pleading
guilty.
17. By entering into this Plea Agreement, the Defendant authorizes the Court to
immediately enter a preliminary order of forfeiture against the property
described by this Plea Agreement, consents to that order becoming final as to
her at the time of entry, and agrees that the order shall become part of her
sentence and be incorporated into the judgement against her automatically
at the time of its entry without further action from the Court.
18. With regard to all forfeitable assets, the Defendant agrees to take all steps
necessary to ensure that all required signatures are obtained, including, but
not limited to the signature of her mother, Doris Ayer, to get the sum of
$468,496.00 released from New York Life Insurance Company and made
available for forfeiture. The United States agrees that the $468,496.00
forfeited by the Defendant can be used to pay full restitution to USAC as may
be ordered by the Court. After Defendant pays full restitution to USAC, the
United States agrees to dismiss any and all criminal forfeiture proceedings
against the Defendant.
19. The Defendant understands and agrees that by pleading guilty to an offense
involving dishonesty or a breach of trust, or money-laundering, as set forth in
12 U.S.C. §§ 1785 and 1829, the Defendant is prohibited from controlling or
participating, directly or indirectly, in the conduct of affairs of any federally-insured bank or credit union, and is prohibited from serving as any director,
officer, employee, agent, controlling stockholder, or other institution-affiliated
party of any federally-insured bank or credit union without prior written
consent pursuant to federal law.
20. The Defendant represents to the Court that she has met with her attorney on
a sufficient number of occasions and for a sufficient period of time to discuss
the Defendant's case and receive advice; that the Defendant has been
truthful with her attorney and related all information of which the Defendant
is aware pertaining to the case; that the Defendant and her attorney have
discussed possible defenses, if any, to the charges in the Indictment including
the existence of any exculpatory or favorable evidence or witness, discussed
the Defendant's right to a public trial by jury or by the Court, the right to the
assistance of counsel throughout the proceedings, the right to confront and
cross-examine the United States' witnesses, the Defendant's right to testify
in her own behalf, or to remain silent and have no adverse inferences drawn
from her silence; and that the Defendant, with the advice of counsel, has
weighed the relative benefits of a trial by jury or by the Court versus a plea of
guilty pursuant to her Agreement, and has entered this Agreement as a
matter of the Defendant's free and voluntary choice, and not as a result of
pressure or intimidation by any person.
21. The Defendant is aware that 18 U.S.C. § 3742 and 28 U.S.C. § 2255 afford
every Defendant certain rights to contest a conviction and/or sentence. Acknowledging those rights, the Defendant, in exchange for the concessions
made by the United States in this Plea Agreement, waives the right to
contest either the conviction or the sentence in any direct appeal or other
post-conviction action, including any proceedings under 28 U.S.C. § 2255.
This waiver does not apply to claims of ineffective assistance of counsel or
prosecutorial misconduct. This Agreement does not affect the rights or
obligations of the United States as set forth in 18 U.S.C. § 3742(b). Nor does
it limit the United States in its comments in or responses to any post-sentencing matters.
22. The parties hereby agree that this Plea Agreement contains the entire
agreement of the parties; that this Agreement supersedes all prior promises,
representations and statements of the parties; that this Agreement shall not
be binding on any party until the Defendant tenders a plea of guilty to the
Court having jurisdiction over this matter; that this Agreement may be
modified only in writing signed by all parties; and that any and all other promises, representations and statements, whether made prior to,
contemporaneous with or after this Agreement, are null and void.
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