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United States of America v. Randy Berger

March 31, 2011

UNITED STATES OF AMERICA,
v.
RANDY BERGER DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to enforce stipulations (ECF No. 27) filed by the government on January 7, 2011. Defendant Randy Berger ("defendant") filed his first response dated January 10, 2011 (ECF No. 28), and a second response dated February 11, 2011 (ECF No. 30). On February 22, 2011, the government filed a reply to defendant‟s second response (ECF No. 31). Defendant‟s sentencing is scheduled to take place on April 4, 2011 at 3:30 p.m.

The government argues in its motion that the court should enforce the stipulated loss amounts in the plea agreement at the time of sentencing by precluding defendant from introducing evidence of a loss lower than the amount to which defendant stipulated. In the alternative, the government asserts the court should construe defendant‟s arguments for being able to introduce evidence of lower loss amounts or to object to the stipulated loss amounts as a breach of the plea agreement. Defendant responds that information relevant to loss amounts was not available to him when he entered into the plea agreement with the government, and he believes the loss values are incorrect. Defendant argues U.S.S.G. § 6B1.4(d) permits the court to look at facts outside the stipulations in a plea agreement to determine the appropriate sentence.

I. Background

On February 11, 2010, defendant pleaded guilty to count one of the information at criminal no. 09-335 charging him with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343. On December 10, 2010, defendant entered into a plea agreement with the government. (ECF No. 6.) The parties do not dispute the validity of the plea agreement.

The relevant portions of the plea agreement are set forth as follows:

B. In consideration of and entirely contingent upon the provisions of Parts A and C of this agreement, the United States Attorney for the Western District of Pennsylvania agrees to the following:

1. The United States Attorney retains the right of allocution at the time of sentencing to advise the sentencing Court of the full nature and extent of the involvement of Randy Berger in the offense charged in the Information and of any other matters relevant to the imposition of a fair and just sentence. . . .

C. Randy Berger and the United States Attorney further understand and agree to the following: . . .

3. The parties stipulate that the loss associated with the conduct charged in the Information, and all relevant conduct, is between $1,000,000 and $2,500,000 for the purpose of the Sentencing Guidelines. This stipulation represents the parties‟ best understanding on the basis of the information available as of the date of this agreement. The stipulation is not binding on the Court and does not preclude the parties from bringing to the attention of the United States Probation Office or the Court any information not within their knowledge at the time this agreement is executed.

4. The parties agree that the attached stipulation is a complete and accurate account of the offense conduct, including all relevant conduct, and therefore that under § 2B1.1 of the Sentencing Guidelines, the base offense level is 7. The parties further agree that the base offense level of 7 should be raised by 16 levels under § 2B1.1(b)(1)(I) of the Guidelines.

5. The parties further agree that the adjusted base offense level should be raised by a total of 2 levels under section 3B1.3 (Abuse of Position of Trust or Special Skill) of the Guidelines.

6. The parties also agree that the adjusted base offense level should be lowered by a total of 3 levels under section 3E1.1 (Acceptance of Responsibility) of the Guidelines.

7. Thus, the parties agree that Randy Berger‟s overall offense level under the Sentencing Guidelines is ...


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