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United States of America v. Lacy E. Tilley Jr

April 1, 2011

UNITED STATES OF AMERICA,
v.
LACY E. TILLEY JR., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Pending before the court are three motions to enforce stipulations (ECF Nos. 525 in 06-216, 147 in 07-290, 117 in 09-43) filed by the government on January 13, 2011. The pleas entered into in criminal numbers 07-290 and 09-43, were entered under the same plea agreement, and for purposes of sentencing, the stipulations are consolidated with the case filed at criminal number 06-216. Defendant Lacy E. Tilley, Jr. ("defendant") filed identical responses in each of the three cases, dated March 7, 2011 (ECF No. 541, in 06-216, 158 in 07-290, 125 in 09-43). Defendant‟s sentencing hearing is scheduled to reconvene on April 5, 2011 at 10:00 a.m.

The government argues in its motions that the court should enforce the stipulation in the parties‟ plea agreement related to the loss amount. In addition, the government asserts the court should declare the defendant breached the plea agreement by: 1) disputing the stipulated loss amount, 2) seeking to withdraw his plea, and 3) not accepting responsibility for the remaining counts of the charges at criminal number 06-216. Defendant responds that the court should make no preliminary finding, ruling or declaration with respect to the motions, or in the alternative, either deny the motions or rule to hold disposition of the motions until the continuation of the sentencing hearing. Defendant contends that the court already ruled upon the government‟s objection to the defendant‟s presentation of evidence related to the loss amount, and found that defendant had a right to discovery and a right to present evidence relevant to sentencing. Specifically, defendant maintains that the court found that the financial information is relevant to the matter of restitution. In addition, defendant notes that the government did not object to the presentation of evidence related to the enhancements reflected in the presentence investigation report ("PIR").

I. Background

On November 12, 2008, defendant was convicted of mail fraud offenses at criminal number 06-216. On July 21, 2009, defendant entered into a plea agreement with the government. Specifically, defendant agreed to plead guilty to: 1) count ten of the indictment at criminal number 07-290 charging defendant with mail fraud, in violation of 18 U.S.C. § 1341 (ECF No. 46); and 2) count one of the indictment at criminal number 09-43 charging defendant with wire fraud, in violation of 18 U.S.C. § 1343 (ECF No. 22). On the next day, defendant pled guilty to those charges. (See ECF Nos. 47 in 07-290; 23 in 09-43.) The parties do not dispute the overall validity of the plea agreement.

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

A. The defendant, Lacy Tilley, agrees to the following:

1. He will enter a plea of guilty to Count 10 of the Indictment at Criminal No. 07-290 and Count One of the Indictment at Criminal Number 09-43, charging him with violating 18 U.S.C. §§ 1341 and 1343, respectively, pursuant to Rule 11 of the Federal Rules of Criminal Procedure.

2. He acknowledges his responsibility for the conduct charged in the remaining Counts of the Indictments at Criminal Nos. 07-290 and 09-43 and stipulates that the conduct charges in those Counts may be considered by the Probation Office or by the Court in calculating the guideline range and in imposing sentence.

3. He will pay mandatory restitution under the Victim-Witness Protection Act, 18 U.S.C. §§ 3663, 3663A and 3664, to the victims and/or other persons or parties authorized by law in such amounts, at such times, and according to such terms as the Court shall direct.

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:

2. The United States Attorney will recommend the consolidation of the sentencing hearing of the Indictments at criminal Nos. 07-290 and 09-43, and the Indictment at Criminal No. 06-216. In addition, the United States will recommend that the sentences for the Indictments at Criminal Nos. 06-216, 07-290, and 09-43 run concurrently, and that those offenses should be grouped, for the purposes of determining the appropriate offense level under the Sentencing Guidelines.

3. The United States will not seek an upward departure or variance of the sentencing range calculated by the Court pursuant to the Sentencing Guidelines.

4. 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 Lacy Tilley in the offenses charged in the Indictments and of any other ...


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