USA v. Wehnes

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSHUA KANE WEHNES,
Defendant.
Case No. 3:22-cr-00021-SLG-KFR
ORDER RE FINAL REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE UPON A PLEA OF GUILTY
A plea agreement was filed in this case at Docket 33. Pursuant to Rule 11
of the Federal Rules of Criminal Procedure, this matter was referred to the
Honorable Magistrate Judge Kyle Reardon by the District Court, with the written
and oral consents of Defendant, counsel for Defendant, and counsel for the United
States. A proposed change of plea hearing was held before the Magistrate Judge
at which Defendant entered a guilty plea to Count One of the Indictment, charging
a violation of 21 U.S.C. § 841(a)(1), Possession with the Intent to Distribute a
Controlled Substance, and Count 2 of the Indictment, charging a violation of 18
U.S.C. 	§ 	924(c)(1)(A)(i), 	Possession 	of 	a 	Firearm 	in 	Furtherance 	of 	Drug
Trafficking. Defendant also admitted Criminal Forfeiture Allegations Nos. 1 and 2.
The parties’ agreement was pursuant to Fed. R. Crim. P. 11(c)(1)(A) and (C) and
included a joint recommendation of a sentence of 90 months’ imprisonment: 	30
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months on Count 1 followed by 60 months on Count 2. In the factual basis for the
plea agreement, Defendant admitted that he possessed 400 grams of a mixture
containing methamphetamine. 	A person found guilty of possessing that quantity
of a mixture containing methamphetamine is subject to a mandatory minimum
sentence of imprisonment of five years pursuant to 21 U.S.C. § 841(b)(1)(B). But
Defendant did not plead to the possession of that quantity as an element of the
offense. Rather, he pleaded guilty only to simple possession under § 841(b)(1)(C)
of the statute, which has no mandatory minimum term of imprisonment up to a
maximum 20 years’ incarceration.
Judge Reardon issued a Final Report and Recommendation at Docket 39
in which he recommended that the District Court accept Defendant’s pleas of guilty
to Counts 1 and 2 of the Indictment and accept Defendant’s admission to the
Criminal Forfeiture Allegations. 	However, Judge Reardon determined that since
Defendant had admitted in the factual basis for the plea that he possessed 400
grams of a mixture containing methamphetamine, the applicable punishment
range was not under § 841(b)(1)(C); rather, the applicable range was under
subsection (b)(1)(B), which carries a mandatory minimum term of five years up to
a term of 40 years in prison. 	The Magistrate Judge reasoned that because
Defendant admitted in the plea colloquy that he possessed that quantity of a
mixture containing methamphetamine, that fact had been established beyond a
reasonable doubt. 	The Magistrate Judge cited to a Ninth Circuit decision, United
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States v. Haynes, 216 F.3d 789, 799 (9th Cir. 2000), which had held that the
District Court lacked the authority to sentence below the mandatory minimum
sentence where the defendant had admitted to possessing a quantity of controlled
substances that met the threshold necessary to invoke the mandatory minimum.
The Magistrate Judge also cited to other Ninth Circuit authority that had held that
“drug quantity and type are not formal elements of the offense of conviction.”1 After
apprising Defendant that the potential penalties on Count 1 ranged from the five
year mandatory minimum up to 40 years, Defendant nonetheless elected to go
forward with the change of plea and forfeiture admissions, and the Magistrate
Judge made the requisite Rule 11 findings and recommended that this Court
accept Defendant’s pleas of guilty to Counts One and Two of the Indictment and
accept his admissions to the Criminal Forfeiture Allegations.
At Docket 41, the Government filed objections to the Final Report and
Recommendation. The Government maintains that the Magistrate Judge erred in
his determination that Defendant had pleaded guilty to a drug trafficking crime that
carries 	the 	five-year 	mandatory 	minimum 	sentence 	set 	out 	in 	21 	U.S.C. 	§
841(b)(1)(B). 	In addition, the Government objects to the Magistrate Judge’s
conclusion that its analysis on this point was purely academic; rather, noting that
the five-year term in Count 2 must run consecutive to Count 1, the Government
maintains that “if the Magistrate Judge were correct, the [90 months’] sentence to
1 Docket 39 at 4 (citing United States v. Hunt, 656 F. 3d 906, 912 (9th Cir. 2011)).
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be imposed under the plea agreement would be illegal.”2 	The Government cites
to Alleyne v. United States, 570 U.S. 99, 108 (2013), where the Supreme Court
held that “[f]acts that increase the mandatory minimum sentence are therefore
elements and must be submitted to the jury and found beyond a reasonable doubt.”
The Government maintains that “[a]dmitting in the factual basis that the defendant
did some act which could support an enhanced penalty does not mean the
defendant has now pleaded guilty to that uncharged offense.”3
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). The
Court has reviewed the Final Report and Recommendation and the Government’s
objections. 	The Court finds merit in the Government’s objections and its reliance
on Alleyne insofar as drug quantity in now an element of the offense. 	Defendant
pleaded only to a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), which does not
have as an element any quantity threshold. 	The Government is not seeking the
enhanced statutory penalties and the allegations in the factual basis do not change
the essential elements of the offense pleaded to by Defendant. 	Accordingly, the
Court does not adopt this portion of the Magistrate Judge’s Final Report and finds
that the punishment for Count 1 is as laid out in the parties’ Plea Agreement: no
mandatory minimum and up to 20 years’ imprisonment.
Since this ruling is more favorable to Defendant than was relayed to him at
2 Docket 41 at 1.
3 Docket 41 at 4.
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the change of plea hearing, the Court nonetheless will adopt the Magistrate
Judge’s findings as set forth on pages 8 through 10 of the Final Report and
Recommendation but clarifies that the guilty plea on Count 1 is to 21 U.S.C. §§
841(a)(1) and (b)(1)(C).
Therefore, IT IS ORDERED that the Court ACCEPTS Defendant’s pleas of
guilty to Counts 1 and 2 of the Indictment and Defendant is adjudged GUILTY of
Counts 1 and 2. 	The Court also ACCEPTS Defendant’s admissions to Criminal
Forfeiture Allegations Nos. 1 and 2. An Imposition of Sentence hearing has been
scheduled for January 26, 2023 at 10:30 a.m. before District Judge Sharon L.
Gleason in Anchorage Courtroom 2.
DATED this 7th day of November, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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