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UNITED STATES v. ALLEN

March 24, 1987

United States of America
v.
William Emanuel Allen



The opinion of the court was delivered by: DIAMOND

 These cases are here on remand from the United States Court of Appeals for the Third Circuit following defendant's appeal from the judgments of conviction entered and sentence imposed by this court on January 7, 1986. In its opinion of October 30, 1986, 804 F.2d 244, the Court of Appeals vacated the sentence and stated that it was remanding the cases "solely to allow the district court to determine whether it is satisfied that there is a factual basis for the plea . . . ." *fn1"

 For the reasons which follow, the court reasserts the determination which it made at the time it entered judgment and imposed sentence on January 7, 1986, that it was satisfied from matters of record other than defendant's statements at the plea hearing that there was a factual basis for the defendant's guilty plea to all charges, including the C.C.E. charge.

 On January 7, 1986, the day that trial was scheduled to commence in these cases, the defendant and the government entered into a plea bargain whereby the defendant agreed to plead guilty to all counts of the seven-count indictment at Criminal 85-246 and the thirteen-count indictment at Criminal 85-24, which included a charge that the defendant had conducted a C.C.E. in violation of 21 U.S.C. § 848. The plea agreement was made pursuant to Rule 11(e)(1)(C), Fed.R.Crim.P., and provided that the defendant would be sentenced under the C.C.E. count to a term of imprisonment of twenty years and to the forfeiture of certain property, and in addition that he would be sentenced for certain drug-related offenses under 21 U.S.C. § 841 to a special parole term for the remainder of his life.

 Following an exhaustive plea hearing which lasted over two hours, the court accepted the defendant's plea and indicated that it was prepared to sentence the defendant in accordance with the terms of the plea bargain. When asked by the court if he had anything to say in behalf of his client before sentence was imposed, counsel for the defendant stated: "Your honor, the only thing that I would say is that Mr. Allen has entered into the plea bargain voluntarily and that we ask that your Honor carry out the plea bargain." App. 76A. *fn2" The defendant declined to say anything on his own behalf; the court sentenced him precisely in accordance with the plea bargain, and the appeal followed.

 In his appeal the defendant contended that the plea was not entered voluntarily and knowingly and further that it "was deficient under Rule 11 of the Federal Rules of Criminal Procedure." Counsel for appellant argued in his behalf that Rule 11(f), Fed.R.Crim.P., required the court to find a factual basis for the plea solely from the defendant's admissions and that the court erred because it erroneously believed that the defendant admitted to organizing and supervising the requisite five people under the C.C.E. charge when, in fact, the defendant admitted only to four. In support of this, the appellant cited that portion of the plea hearing which is found at App. 71A-73A, and which is quoted by the Court of Appeals in its opinion at p. 246:

 
THE COURT: Do you have anything that you want to put on the record, with regard to the testimony of the agent, at this time?
 
THE DEFENDANT: No; I don't.
 
(DISCUSSION BETWEEN THE DEFENDANT AND HIS COUNSEL)
 
THE DEFENDANT: I am not satisfied, Your Honor, with the five people I was supposed to organize and supervise. I am not satisfied with that.
 
THE COURT: The agent has testified to incidents where you allegedly went to New York and to Baltimore with a certain person for the purpose of purchasing drugs. Do you admit or deny that you did make trips to Baltimore for the purpose of buying and/or selling drugs or -- do you admit that?
 
THE DEFENDANT: Yes.
 
THE COURT: You admit that. He has testified to certain transactions with regard to Joan Sberna. Do you admit or deny that those things occurred?
 
THE DEFENDANT: I deny that.
 
THE COURT: You deny that you had any dealings with Joan Sberna with regard to sale through her?
 
THE DEFENDANT: What was ...

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