Free Transcript - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) JESUS RIVERO JAQUEZ-DIAZ, ) ) Defendant. ) ) ______________________________) BEFORE:

CR04-0021-PHX-PGR Phoenix, Arizona August 8, 2006 10:19 A.M.

THE HONORABLE PAUL G. ROSENBLATT, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS PLEA HEARING

APPEARANCES: For the Government: U.S. ATTORNEY'S OFFICE By: Glenn B. McCormick, Esq. 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 For the Defendant Jesus Rivero Jaquez-Diaz: DANIEL R. RAYNAK, P.C. By: Daniel R. Raynak, Esq. 45 West Jefferson, Suite 225 Phoenix, AZ 85003 Official Court Reporter: Elizabeth A. Lemke, RDR, CRR, CPE Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 34 Phoenix, Arizona 85003-2150 (602) 322-7247 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

Case 2:04-cr-00021-PGR

Document 84

Filed 05/29/2008

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P R O C E E D I N G S (Called to the order of court at 10:19 a.m.) THE CLERK: Criminal matter 04-21, United States v.

Jesus Rivero Jaquez set for plea hearing. Counsel, please announce. THE COURT: Please be seated. Good morning, Your Honor. Glenn

MR. MC CORMICK:

McCormick appearing for the United States. MR. RAYNAK: Good morning, Your Honor. Daniel Raynak

on behalf of Mr. Jaquez-Diaz who is present. THE COURT: And if you would step to the lectern,

Now, sir, you would raise your right hand and be placed under oath by the courtroom deputy, please. (DEFENDANT SWORN) THE COURT: And now, sir, I must advise you of the

significance of that oath which is, of course, that if you should answer falsely any of the questions I'm about to ask you, you could be prosecuted for the crimes of perjury or giving false statement. Do you understand that? Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Rivero Jaquez-Diaz. JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Is your true and correct name Jesus

Yes, sir.

And how old are you?

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

I'm 48, sir.

And how much education have you had? I got my GED, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT: did you complete? JESUS RIVERO JAQUEZ-DIAZ:

And how many years of formal schooling

I would say through the

THE COURT:

Finished that ninth year? Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And then later on you obtained your GED? My GED, yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And have you had any -- can you read and

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

Have you had any jobs since you left

school and got your GED that have required a knowledge of reading and writing? JESUS RIVERO JAQUEZ-DIAZ: working since 1973, sir. THE COURT: So almost every job you've had, you had Yes, sir. I have been

to know how to read and write to hold that job? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Plea Agreement? JESUS RIVERO JAQUEZ-DIAZ: Yes, sir. All right. Correct, sir.

Were you able to read the

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THE COURT:

Have you consumed any alcoholic beverages

within the past 24 hours? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Have you taken any drugs or narcotics

within that period of time? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Are you taking any prescription

medications of any sort? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Not at all, sir.

Have you ever been determined by any

judge to be insane or incompetent or non compos mentis? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: this morning? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. No, sir.

Do you understand what's going on here

Here to enter into a plea agreement and

pled guilty to a felony criminal charge; is that your understanding? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Mr. Raynak, has there been anything in

your representation of this client that would suggest to you that he is not competent? MR. RAYNAK: THE COURT: No, sir. Anything in the government's file,

Mr. McCormick, that would raise this issue? UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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MR. MC CORMICK: THE COURT:

No, not at all, Your Honor.

The Court finds the defendant is

competent to proceed with this Plea Agreement. Now, Mr. Jaquez-Diaz, the Court has had filed with it a Plea Agreement and it is ten pages long. On page 10

Mr. McCormick has signed it as the Assistant United States Attorney, and up near the top of that part, Mr. Raynak has signed it as your attorney. And then over on the bottom of

page 9 there's a third signature. Would you look up here, sir? JESUS RIVERO JAQUEZ-DIAZ: MR. RAYNAK: THE COURT: Look up there. Can you see that from where you're Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

And whose signature is that? It's mine, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And you signed it Jesse Jaquez? Correct, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And that's the names you usually go by

and the way you usually sign your name? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And you signed that today? Correct.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Now, have you read this Plea Agreement?

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT: agreement? JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

Do you understand the terms of this

Yes, sir.

Is this all the terms of your agreement

with the United States? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Mr. Raynak? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. That's all, sir.

Have you discussed all these terms with

And you agree to these terms? Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Specifically, it says that you will plead

guilty to an indictment that charges you with the crime of Felon in Possession of a Firearm, a Class C felony offense, and admit the forfeiture allegation; is that correct? JESUS RIVERO JAQUEZ-DIAZ: MR. RAYNAK: Correct, sir.

Your Honor, the only other thing that

was in there and it was kind -- I don't know if it was implicit -- but the government never proceeded forward. There

were some drugs found in the house, but they have agreed they wouldn't have any grounds to bring charges against my client for that. They didn't bring charges, so that's why there is

no charges to be dismissed. They have agreed they don't have any basis to charge UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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him with that offense. THE COURT: that stage yet. Well, I don't think we have gotten to

We're just asking about the charges to which

he is pleading guilty. MR. RAYNAK: THE COURT: Yes, sir. Well then, how do you plead? Guilty or

not guilty to the crime of Felon in Possession of a Firearm? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: allegations? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. I'm guilty, sir.

And you admit to the forfeiture

Now then, before I can accept your plea

of guilty, I must ask you several questions. I need to determine first whether you understand the nature of the charge, whether your plea is freely and voluntarily given, and whether there's a factual basis for it. And, of course, in the process of that, to make sure that you understand all the rights that you have concerning these charges, so I'm going to be asking you a good number of questions in an effort to make these determinations. Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Okay. Correct, sir. Yes.

Now, as we go through this

process, if I ask you a question and you don't understand that question, will you make sure that you do understand it before UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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you attempt to answer? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Remember also that you may confer with

your attorney at any time during the course of these proceedings. Well, first of all then, do you understand the nature of the charge Felon in Possession of a Firearm? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Do you understand that this is a felony

offense as distinguished from a misdemeanor offense? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Do you know what the maximum statutory

penalty for this crime is? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Please tell me. Well, according to -- it Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ:

says it can be a maximum up to ten years, sir. THE COURT: fine of $250,000. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: years or both. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Correct. Correct. Yes. You could be punished by a maximum

A maximum term of imprisonment of ten

And a term of supervised release of not Do you understand that?

more than three years.

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

Now, that's what the statute says, but do

you understand that the Court must take into consideration the Sentencing Guidelines in arriving at any reasonable sentence to be imposed in this case? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Have you discussed with Mr. Raynak

guideline sentencing and how they apply? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Did he explain them to you in general

terms and to the extent possible how those guidelines may apply to you for committing this crime? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: that fair to say? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Correct, sir. Yes, sir.

Probably he gave you some estimates; is

But you understand that what he said in

that regard were just estimates? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

The reason they're just estimates is

because as we stand here this morning, no one knows exactly what those Sentencing Guidelines would be. Did he explain that to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And did he explain that every offense

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against the laws of the United States is assigned a base offense level number? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: that base number is. Yes, sir.

And we look in a manual to determine what Did he explain that to you? Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Once we know what the base level is, then

we look to see what, if any, adjustments are appropriate. Did he explain that to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And there are a whole variety of

adjustments that the Court must take into consideration, such as the offense conduct, the offense characteristics, your acceptance of responsibility, all of which could involve the adding or subtracting of offense level numbers. Did he explain that to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And once then we know what the offense

level total is, then we look to see the extent of your criminal history. And by the nature of this plea, we know Did he explain that to

that you have some criminal history. you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

Once then we know what criminal history

category you fall within, then we look at a sentencing table. UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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Did he show you a copy of a table that looks like

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

And you understand how this table works? Yes, sir. Down the

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Let's review it one more time.

side here is the offense level total. criminal history category.

Across the top is the

Wherever those lines come

together, there's a range of sentences in months. Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And the Court must take into

consideration that guideline sentencing range in arriving at a reasonable sentence to be imposed upon you. Did he explain that to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And do you also understand and agree that

while the Court must take into consideration the Sentencing Guidelines, they are only advisory? Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

And after considering the guidelines, the

Court may be free to exercise its discretion to impose any reasonable sentence up to the maximum set by statute for the crime of conviction. Do you understand that?

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

Now then, do you also understand and

agree that you're going to have to make restitution if there is any victim of this offense? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And do you also understand and agree that

you're going to have to pay a fine unless you can establish to the satisfaction of this Court that you should be excepted from having to pay a fine. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

You also understand and agree that you're

going the have to serve a term of supervised release after release from prison. And if you were to violate any of the

terms and conditions of your supervised release, you could be brought back to court and sent back to prison? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand that, sir.

And do you also understand and agree that

you're going to have to pay a special assessment in the amount of $100 no matter what? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Okay, sir.

Now then, has anybody tried to force you

to plead guilty to this charge? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Has anybody threatened you in any way to

get you to plead guilty to this charge? UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

No, sir.

Has anybody made any promises to you

other than those set forth here in this Plea Agreement to get you to plead guilty? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Is it your understanding and your

agreement regarding sentencing to be that the United States will recommend the low end of the advisory guideline range at the total offense level ultimately applicable by the court? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And that you and the government stipulate

that the advisory guideline calculations shall be Base Offense Level under Level 2K2.1(a)(4)(A) to be 20. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

And that the specific -- specific --

excuse me -- offense characteristics under another guideline there adds a plus-2. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

And that the acceptance of responsibility

under that guideline is a subtraction of 3 levels, right? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: would be a 19. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. Yes.

And that the offense level total then

Now, Mr. McCormick, did you have

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something? MR. MC CORMICK: clarify. stipulate. Your Honor, I just wanted to

I believe the Court indicated that the parties We estimate that these are the factors and the

government recommends these as factors, but it is not a stipulation. THE COURT: I said "stipulate." I see. So. Excuse me. That is an estimate.

You understand that this is the estimate that you and the government are entering into in making a recommendation to the court, right? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And you further agree that you are not

precluded from seeking any other adjustment or departure from the guidelines or any sentence that is appropriate upon a fair consideration of the factors in Title 18, United States Code, Section 3553? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

And the government reserves the right to

oppose any downward adjustment, departures, and arguments for sentences below the low end of the estimated total offense level that's estimated? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand, yes, sir.

You further understand and agree that the

Court is neither a party to, nor is it bound by this UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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agreement, and specifically, the United States' recommendation is not binding on the Court and the Court may impose any sentence provided for by law? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Okay, sir.

And you further understand that if the

Court imposes a sentence different from what the United States recommends, you will not be permitted to withdraw your guilty plea? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

You further understand and stipulate in

this case that the offense level adjustment in 2K2.1(b)(5) -what is that? The use in a crime? No, Your Honor. There was some

MR. MC CORMICK: drugs found in the house.

The government cannot specifically That would add four levels and we

tie them to this defendant.

agree that that shouldn't apply. THE COURT: So that's your understanding and your

agreement concerning this guideline -JESUS RIVERO JAQUEZ-DIAZ: THE COURT: -- adjustment. I understand, sir.

You further understand and agree that if the Court, after reviewing this Plea Agreement, concludes that any provision is inappropriate, it may reject the Plea Agreement and then you would have an opportunity to withdraw your guilty plea? UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

And you further understand and agree that

the United States retains the unrestricted right to make any and all statements it deems appropriate to the Probation Office and to make factual and legal responses to any statements made by you, your attorney, or objections to the presentence report, or to questions by the Court at the time of sentencing? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And then paragraph g deals with And you understand and agree

acceptance of responsibility.

that assuming you make a full and complete disclosure to the Probation Department of the circumstances surrounding your committing this crime, and if you would be eligible for a recommended 2-point reduction under the guidelines, and if you demonstrate an acceptance of responsibility for this offense, up to and including the time of sentencing, and provided that you accept the terms of this agreement no later than July 24, 2006 -- and I gather that that was accepted, but -- is that right? We're here in August. MR. MC CORMICK: It was communicated to the

government by July 24th, Your Honor. THE COURT: That's when this was originally set, but

the Court had to continue it. Okay. Then the United States will recommend a

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three-point reduction in the advisory guidelines based on your acceptance of responsibility. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Now then, you further understand and

agree that this Plea Agreement is expressly conditioned upon the accuracy of your criminal history as known by the government at the time of the plea. And should it turn out

that you have any additional criminal history, then the government could withdraw from this agreement. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand, sir.

Now then, you further understand and

agree that no charges are being dismissed as a part of this agreement? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Is that right? Yes, sir. Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And that this agreement does not in any

manner restrict the actions of the United States in any other district, nor bind any other United States Attorney's Office? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

Let's turn for a moment then over to page

6, the Forfeiture, Civil, and Administrative Proceedings provisions section there, paragraph 9, are these the three firearms that you are agreeing to forfeit as part of this Plea Agreement? UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Yes, sir.

They're listed there, a Smith and Wesson

model 686 .357 caliber revolver with a serial number; Winchester model 1300 12-gauge shotgun with a serial number; a North China Industries model SKS 7.62 rifle with a serial number. And these were firearms seized from your house on

September 3, 2003, with the execution of a valid search warrant of your home. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And you're willing to forfeit those as

provided in this section and this Plea Agreement? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

Now then, other than what we've talked

about orally, but of course, what appears throughout the entirety of this Plea Agreement, has anybody promised you or represented to you that you would receive any sort of special or lenient treatment by this court to get you to plead guilty? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

For example, has your attorney

represented to you that you would be placed on probation or that the Court would give you a low-end sentence or would accept this Plea Agreement or anything in any way to get you to enter this Plea Agreement? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Has any prosecutor made any such promises

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or representations of leniency to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: No, sir.

Has any probation officer or any judge

made such promises to you? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: plead not guilty? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand, sir. No, sir.

You realize you have an absolute right to

And once you've pled not guilty, the

burden is placed upon the United States to prove your guilt with proof beyond a reasonable doubt. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Do you understand that?

Yes, sir.

And the law presumes you to be innocent

until such time as you have been proven guilty with proof beyond a reasonable doubt. Do you understand that? Yes, sir. Do

JESUS RIVERO JAQUEZ-DIAZ: THE COURT: you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

You have a right to a trial by jury.

Yes, sir.

Mr. Raynak would be there at all times to

assist you in that trial from the very beginning to the very end. Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

At that trial you could confront your

accusers and cross-examine any witnesses that testify against UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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you.

Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

At that trial you could compel the

attendance of witnesses and present evidence if you wanted to. Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

In fact, you could testify in your own Do you understand that? Yes, sir.

defense at that trial.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

But if you didn't want to testify, no one Do you understand that? I understand, sir.

could force you to testify.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

You have a constitutional protection Do you understand that? Yes.

against self-incrimination.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Did you discuss that with Mr. Raynak? Yes.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

Well, you discussed all of your rights

with him, isn't that fair to say? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

They appear in written form at the bottom I believe you say you've

of page 8, almost all of page 9.

read it and reviewed it and discussed it and you understood it. JESUS RIVERO JAQUEZ-DIAZ: Yes.

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THE COURT:

Now, if you chose to go to trial before a

jury and if that jury were to convict you, you would have a right to appeal. Do you understand that? Yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And if you didn't have the funds for an Do

attorney, the court would appoint one to represent you. you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

The court would also provide at no cost

to you a certified transcript of the record to assist in that appeal. Do you understand that? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

Do I understand then that you're willing

to give up these rights to plead guilty? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

In fact, there is a specific provision in

this Plea Agreement, isn't there, on page 4, paragraph 5, that deals with waiver of defenses and appeal rights. that? JESUS RIVERO JAQUEZ-DIAZ: Yes, sir. THE COURT: It says you're going to give up all those I'm looking at it right Do you see

rights in every form if the court imposes a sentence consistent with this agreement, correct? JESUS RIVERO JAQUEZ-DIAZ: I understand.

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THE COURT:

Well then, having advised the Court that

you are giving up all your rights to plead guilty, are you guilty? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

The factual basis and the elements of

this offense are set forth on the bottom half of page 7, continuing over to page 8. I want you to look there at the elements of this offense first. listed there. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. Do you see that? There are three elements

And the United States would have to prove

each and every one of those elements with proof beyond a reasonable doubt in order for you to be found guilty. And if

it failed to prove any one of those three, you could not be found guilty. Do you understand that? I do, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And thereafter, are those the facts that

the United States could prove with proof beyond a reasonable doubt if this were to proceed to trial? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I understand, sir.

Tell the Court in your own words how you

committed this crime of Felon in Possession of Firearms. JESUS RIVERO JAQUEZ-DIAZ: bed, sir, and they belonged to me. UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008 I had those guns under my

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THE COURT:

All right.

Was this on September 3,

2003, that a search warrant was executed at your home? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes.

At 11540 North 80th Avenue, Peoria,

Arizona, by the Peoria Police Department? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: That's correct, sir.

And during the search, three firearms,

including a Smith and Wesson model 686 .357 caliber revolver, serial No. AJV5099, a Winchester model 1300 12-gauge shotgun No. L2889145, and a North China Industries model SKS 7.62 rifle No. 1500976 were found under your mattress? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: of these weapons? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. Yes, sir.

And you admit that you were in possession

And while standing at the perimeter

established by Peoria police, you spoke with an officer; is that true? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

And when the officer asked if they would

find any weapons in the house, you told him that you had a couple of guns in your bedroom that you kept for personal protection. JESUS RIVERO JAQUEZ-DIAZ: THE COURT: That's correct, sir.

And the weapons you spoke of were the

UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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weapons noted above? JESUS RIVERO JAQUEZ-DIAZ: repeat that? THE COURT: Those are the weapons noted above that we I'm sorry, sir. Can you

have just talked about, the three? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir. Yes, sir.

And you admit that each of the firearms

was shipped or transported in interstate or foreign commerce, because none of them were manufactured in the State of Arizona? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: I didn't know that, sir.

Do you agree to that? I agree, yes, sir.

JESUS RIVERO JAQUEZ-DIAZ: THE COURT:

And you further admit that prior to

possessing the firearms, you had been convicted of at least one felony conviction, specifically in 1993 you were convicted of Conspiracy to Possess Narcotic Drugs for Sale in Maricopa County Superior Court CR92-92312 for which you were sentenced to five years in the Arizona Department of Corrections? JESUS RIVERO JAQUEZ-DIAZ: THE COURT: Yes, sir.

Are you satisfied, Mr. Raynak, that

there's a factual basis for your client's plea? MR. RAYNAK: THE COURT: Yes, Your Honor. Have you had sufficient access to the

government's evidence to know what could be presented in UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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support of this charge? MR. RAYNAK: THE COURT: Yes, sir. Basically, an open-file policy to the

best of your understanding? MR. RAYNAK: THE COURT: Yes, sir. And, Mr. McCormick, if called upon, could

you prove that the government (sic) has committed this crime of Felon in Possession of a Firearm and that he has admitted to the forfeiture allegation? MR. MC CORMICK: THE COURT: Yes, Your Honor.

The Court finds that the defendant's plea

is freely and voluntarily given without force, threat, coercion, or promise, and that he has admitted the forfeiture allegation. And the Court accepts the plea of guilty and the forfeiture admission, if not the Plea Agreement and fixes -and that there is a factual basis for his plea. And the Court fixes the matter for sentencing for -THE CLERK: THE COURT: Monday, October 30, 2006, at 9:30 a.m. Monday, October 30, 2006, at 9:30 a.m.

And, Mr. Raynak, you know of your responsibility to make arrangements with the Probation Office for the purpose of preparing a Presentence Investigation Report and you should do that as soon as possible? MR. RAYNAK: Yes, sir.

UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. Honor. Report --

THE COURT:

Now then, you've received a copy of the

Pretrial Services Report? MR. RAYNAK: THE COURT: Yes, sir. And I believe that that Pretrial Services

MR. RAYNAK:

No.

I take that back.

No, sir.

I

thought you were talking about the probation report prepared for the settlement conference. MR. MC CORMICK: I haven't received one either, Your

THE COURT:

Well, I will provide you with a copy of

that, but the recommendation by Mr. Hernandez is that the defendant should be allowed to remain released under previously-imposed conditions. Government have any quarrel with that? MR. MC CORMICK: None from the government, Your

MR. RAYNAK: THE COURT:

No, Judge. That's all. Thank you, Your Honor.

JESUS RIVERO JAQUEZ-DIAZ:

(Proceedings adjourned at 10:57 a.m.) * * *

UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 2:04-cr-00021-PGR Document 84 Filed 05/29/2008 s/Elizabeth A. Lemke ELIZABETH A. LEMKE, RDR, CRR, CPE 2008. I, ELIZABETH A. LEMKE, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 29th day of May, C E R T I F I C A T E

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