Application for permission to enter Plea of guilty as to ARLEN G. Encarnacion — USA v. Encarnacion (Dkt. 28, D.N.J.)

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Arlen Encarnacion's Application for Permission to Enter Plea of Guilty in United States of America v. Arlen Encarnacion, Case 3:23-cr-00794-GC in the U.S. District Court for the District of New Jersey, was filed October 11, 2023 as Document 28 on the nine-page court form DNJ-CR-12. On the form the defendant names Lorraine Gauli-Rufo as counsel, certifies an understanding of the rights a guilty plea gives up, marks that the plea agreement does exist in written form, and asks the Court to accept the plea of guilty, followed by a Certification of Counsel recommending that the Court accept it.

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Case 3:23-cr-00794-GC     Document 28     Filed 10/11/23     Page 1 of 9 PageID: 92
OCT 11 2023
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSE ~ AT8:30 M
W JERSEY CLERK, U.S. DISTRICT COURT - DNJ

UNITED STATES OF AMERICA Mag7Crim. No. a >- T 14+ (6 c)

APPLICATION FOR PERMISSION
v. TO ENTER PLEA OF GUILTY

Atle Bredinacion (Defendant with Counsel)

(Defendant’s Name)

Arlen Encarnacion

(Defendant’s Name)

, hereby certifies as follows:

1. My full name is Arlen Encarnacion

and I request that all proceedings
against me be held in that name.

2. I understand that the Constitution and laws of the United States guarantee me the right to be
represented by a lawyer at every stage in these proceedings, including any trial on these
charges, and that if I cannot afford to hire a lawyer, the Court will provide one for me.

5. I have a lawyer who is representing me in this proceeding. My lawyer’s name is

Lorraine Gauli-Rufo . Lam satisfied that I have had enough time
to discuss this matter with my lawyer.

. English [IS] [IS NOT] my native language. My formal education stopped after [grade
Associate's Sts Iam A eeonly UNEMPLOYED [EMPLOYED] as DP igrade]

ates Manager tacciipatiem=—presently attend Pilot Training Courses and Online

Classes for better education.
I have taken [THE FOLLOWING] drugs or medication within the past seventy-two
hours:

6. I [HAVE] [HAVE NEVER been a patient in a mental hospital or institution. I [DO (( PG

RT eliove that at the present time I am mentally ill or mentally incompetent in any
respect.

a Ireceived a copy of the [COMPLAINT] [INDICTMENT] [INFORMATION}/tefore being

called upon to plead. I have read and discussed it with my lawyer. I understand that the
substance of the charge(s) against me is that I: ;
WA 8_Stt {BAR z

DNJ-CR-12 (Rev.08/2010)
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[add separate sheets if necessary]

WAIVER OF INDICTMENT (IF APPLICABLE)

8, My lawyer has explained to me that I have a constitutional right to be charged by an
indictment of a grand jury but that I can waive that right and consent to being charged
through a criminal Information filed by the United States Attorney.

9. I understand that unless I waive indictment I may not be charged with a felony unless a grand
jury finds by return of an indictment that there is probable cause to believe that a
crime has been committed and that I committed it.

10. Talso understand that if I do not waive indictment, the government may present the case to
the grand jury and request the grand jury to indict me.

11. Iunderstand that a grand jury is composed of at least 16 and not more than 23 persons, that
at least 12 grand jurors must find that there is probable cause to believe that I committed the
crime. I also understand that the grand jury may or may not indict me.

12. I further understand that by waiving indictment by the grand jury, the case will proceed
against me on the United States Attorney’s Information as though I had been indicted.

13. My attorney has discussed the nature of the charge(s) against me and waiving my right to
indictment thereon by grand jury, I fully understand those rights, and I wish to waive
indictment by grand jury.

14. My decision to waive indictment by grand jury is made knowingly and voluntarily, and no
threats or promises have been made to induce me to waive indictment.

THE GUILTY PLEA

15. [have told my lawyer all the facts and circumstances known to nie about the charge(s) set
forth in the [COMPLAINT] [INDICTMENT]‘LINFORMATION

16. lam satisfied that my lawyer understands the information which | have provided, and that

my lawyer has counseled and advised me on the nature of each charge and on all possible
defenses that I might have in this case.

17. In addition, my lawyer has explained to me, and I understand, that if I enter a plea of NOT
GUILTY (or persisted in my plea of NOT GUILTY), under the Const

United States I would be entitled to a speedy and public trial by affry of twelve persons n
the charge(s) contained in this [COMPLAINT] [INDICTMENT)] [INFORMATION].

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Case 3:23-cr-00794-GC     Document 28     Filed 10/11/23     Page 3 of 9 PageID: 94
18. | My lawyer has explained to me, and I understand, that at such a trial the jury would be told
by the judge that Iam presumed to be innocent, and that the Government would be required
to prove me guilty of the charge(s) against me beyond a reasonable doubt. I understand that
I would not have to prove that I am innocent, and that I could not be convicted unless all
twelve jurors voted unanimously for conviction.

19. | My lawyer has explained to me, and I understand, that if 1 went to trial on these charge(s),
the Government would have to produce in open court the witnesses against me, and that my
lawyer could confront and cross-examine them and object to evidence offered by the
Government.

20. | My lawyer has further explained to me, and I understand, that I have the right to produce
witnesses and could offer evidence in my defense at a trial on these charge(s), and that I
would have the right, if I so chose, to testify on my own behalf at that trial; but if I chose not
to testify, the jury could draw no suggestion or inference of guilt from that fact.

21. | My lawyer has explained to me, and I undegstand, that if I pleayl GUILTY to any charge(s)
in this [COMPLAINT] [INDICTMENT] ((NFORMATION] and the judge accepts my plea,
I WAIVE MY RIGHT TO TRIAL A TH RIGHTS SET FORTH IN
PARAGRAPHS 17, 18, 19 and 20 ABOVE. I am aware and understand that ifmy GUILTY
plea is accepted, there will be no trial and a judgment of GUILTY will be entered after
which, the judge, upon consideration of my presentence report, will impose punishment upon
me. I understand that if I plead GUILTY, the judge may impose the same punishment as if
I had pleaded "not guilty", went to trial and was convicted by a jury.

22. | My lawyer has also explained to me, and I understand, that if I plead GUILTY, I WAIVE
MY RIGHT NOT TO INCRIMINATE MYSELF. I understand that the judge will ask me
what I did and I will have to acknowledge my guilt as charged by setting forth my actions so
that the judge is satisfied that I am, indeed, guilty. I understand that any statements I make
at the time I plead GUILTY, if untrue and made under oath, can be the basis of a perjury
prosecution against me.

SENTENCING ISSUES

23. My lawyer has informed me, and I understand, that the maximum punishmen,
provides for the offense(s) charged in this [COMPLAINT] [INDICTMENT] [INFORMATIO

is: D
A MAXIMUM OF BD) years imprisonment and a fine of $ 5b )~ for the offense(s)
charged in Count(s) ft Z _. My lawyerhas further explained, nino that there

is [NO] [A] ofS AUPE et punishment of __ years imprisonment and A] mandatory

minium fine of $ for the offense(s) charged in Count(s) ! -

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I understand that/if I plead GUIL'NY to Count(s) } + = of the [COMPLAINT]
[INDICTMENT] (INFORMATION]¥ face a Y sentence on those Count(s) of

years imprisonment, plus an aggregate fine of $_ 7". lwo has additionally explained, and
L understand, that in addition to or in lieu of the penalties already discussed, I may be ordered to
make restitution to any victim of the offense and that the Court may require me to make a
restitution in services instead of money or to make restitution to a designated third person or
organization instead of the victim. I understand that in determining whether to order restitution
and the amount of restitution the Court will consider the amount of the loss sustained by any

victim as a result of the offense, my financial resources, the financial needs and earning ability of
my dependents, and any other factors as the Court deems appropriate.

I understand that I will be assessed $100 for each felony upon which I am sentenced and $25 for
each misdemeanor, if any.

I hereby declare that no officer or agent of any branch of government, (Federal, State or Local),
nor my lawyer, nor any other person, has made any promise or suggestion of any kind to me, or
within my knowledge to anyone else, that I will receive a lighter sentence, or probation, or any
other form of leniency if I plead GUILTY. My lawyer has explained, and I understand, that only
the judge may decide what punishment I shall receive, and that if any person has told me
otherwise, that person is not telling me the truth.

I understand that the sentence to be imposed upon me is within the sole discretion of the
sentencing judge, subject to the provisions of the Sentencing Reform Act of 1984.

I understand that in deciding what sentence to impose upon me, the sentencing judge is required
to consider the maximum and minimum prison terms, fines and terms of supervised release
recommended under the Sentencing Guidelines. I understand that the Sentencing Guidelines may
authorize departures from the maximum and minimum Guidelines recommendations under certain
circumstances.

I understand that the Sentencing Guidelines are advisory, and that the sentencing judge must also
consider the other statutory factors identified in 18 U.S.C. § 3553(a) in deciding what sentence to
impose. I understand that the judge has the authority to impose a sentence more severe (up to the
statutory maximum) or less severe than the sentencing range recommended by the Guidelines.

I have discussed with my attorney how the Sentencing Guidelines might apply to my case.
I understand that the Court will not be able to determine the sentence for my case until after the
Presentence Report has been completed and both J and the Government have had an opportunity

to read the report and challenge any facts reported by the probation officer.

I understand that the Court may be bound to impose a fine in accordance with statutory
requirements.

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31. Lunderstand that parole has been abolished and if I am sentenced to prison I will not be released
on parole.

32. I further understand that the Court [SHALL] /MAY] impose aterm of supervised release to follow
any term of imprisonment and that any violats that term of supervised release may result in
an additional term of imprisonment. I understand that I am subject to a term of supervised release
of up to —— years, the statutory maximum period of supervised release for the crime(s) to which
Iam pleading guilty.
I further understand that the provisions of 21 U.S.C. § , which provide for a mandatory
minimum term of supervised release of ____ years, [DO]({DO NOT] a,

ly to my case.

33. Lunderstand that I will have no right to withdraw my plea on the grounds that anyone’s prediction
as to the Guidelines range or expectation of sentence proves inaccurate.

34. | My lawyer has explained to me, andI understand, that if I am not a citizen of the United States,
my plea of GUILTY to the charged offense(s) [MAY] [WILL LIKELY] result in my being subject

to separate immigration law proceedings to have me removed from the United States by making
me deportable, excludable, or inadmissible, or ending my naturalization.

35; My lawyer has explained to me, and J understand, that if the charged offense(s) is a sex offense
under 42 U.S.C. § 16911(5), my plea of GUILTY [MAY] [WILL LIKELY] result in a requirement

that I register as a sex offender under Federal and State law, and I will be subject to the registration
law’s requirements and penalties.

PLEA AGREEMENT

36. I hereby declare that I have not been forced, coerced or threatened in any manner by any person
to plead GUILTY to these charge(s). Nor have I been told that if [refuse to plead GUILTY, other
persons -witLbe prosecuted.

Si qULneE HAS NOT] been a plea agreement aver into betw,

wt Oeou)s and the United States
Attorney, by Assistant United States Attorney AMAR

(name).[ ] The plea agreement DOES NOT exist in written form.

[X] The plea agreement DOES exist in written form. I have read it or have had it read to me in
English (LANGUAGE). My lawyer has explained it to me and I understand it.

38. The substance of the plea agreement is: a Liew +O .

5 DNJ-CR-12 (Rev.08/2010)
Case 3:23-cr-00794-GC     Document 28     Filed 10/11/23     Page 6 of 9 PageID: 97
4l.

The plea agreement [DOES][DOES NOT] contain stipulations agreed to by the parties.
IF APPLICABLE, CHOOSE ONE OF THE FOLLOWING:

[] I understand that my plea agreement sets forth a Guidelines calculation which I agree is
the total Guidelines offense level applicable to me in this case. I further understand that
Thave waived the right to argue that the sentencing judge should impose a sentence below
the range that results from this offense level, and that the government has waived the right
to argue for a sentence above the range that results from this offense level.

[] I understand that my plea agreement sets forth a Guidelines calculation which J agree is
the total Guidelines offense level applicable to me in this case. I further understand that
with the exception of arguments regarding a departure as set forthin Paragraph ___sooff
Schedule A to the plea agreement, I have waived the right to argue that the sentencing
judge should impose a sentence below the range that results from this offense level, and
the government has waived the right to argue for a sentence above the range that results
from this offense level.

4 The plea agreement contains stipulations regarding certain facts. I understand that if the

sentencing court accepts a factual stipulation set forth in the plea agreement, both I and the

government have waived the right to file an appeal, collateral attack, writ, or motion
claiming that the sentencing court erred-in-dging do.

I understand that my plea agreeyhent [PROVIDES
circumstances I have waived my right to’
case.

OES NOT PROVIDE] that under certain
f collaterally attack the sentence imposed in this

My lawyer has explained to me, and I understand, that if the judge accepts from GUILTY plea
under the plea agreement, including the government’s proposal to dismiss charges or to not bring
other charges, the judge is not bound to follow the other terms of the plea agreement, including
the stipulations recommending that a particular sentence or sentencing range is appropriate or that
a particular provision of the Guidelines does or does not apply. I understand that if the judge does
not follow one or all of the other terms of the plea agreement, including the stipulations, I will
have no right to withdraw my GUILTY plea, even if the disposition of my case may be less
favorable than that proposed in the plea agreement.

I believe that my lawyer has done all that anyone could do to counsel and assist me, AND I AM
SATISFIED WITH THE ADVICE AND HELP MY LAWYER HAS GIVEN ME.

I know the judge will not permit anyone to plead GUILTY who claims to be innocent, and with

that in mind and because Iam GUILTY, I respectfully request that the Court accept my plea of
GUILTY and to have the Clerk enter my plea of GUILTY as follows:

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f

To Count(s) J+ Es this [COMPLAINT] [INDICTMENT] INFORMATION,

44. _—_Loffer my plea of GUILTY freely and voluntarily and of my own acgeOrd with full understanding
of all matters set forth in the [COMPLAINT] [INDICTMENT] [INFORMATION1-in this
application, and in the certification of my lawyer which is attached to this application.

45. declare t at I wish to waive the reading of the [COMPLAINT] [INDICTMENT]

46. The following person(s), men, assisted me in complet ae a va >»
LAD Cuts

I hereby certify that the foregoing information and statements herein are true. I am aware that if any of
the foregoing statements made by me are wilfully false, I am subject to punishment.

Signed by me in open court in the presence of my lawyer this J day of _( yy L , 207s

(eo WLM AAC:
(LC * Defendant

7 DNJ-CR-12 (Rev.08/2010)
Case 3:23-cr-00794-GC     Document 28     Filed 10/11/23     Page 8 of 9 PageID: 99
CERTIFICATION OF COUNSEL

Loyvy Ae Aalto certifies that

7 a iid :
I am an attorney at law of the State of sii and have awcaneo |] [ASSIGNED

TO REPRESENT] the defendant LIED BN BS f Yt 6 in [MAGISFRAFET.
[CRIMINAL] No. 24S — “1g { GC.)

Ihave read and fully explairiéd to the defendant the allegations contained in the [COMPLAINT]
[INDICTMENT] [IXFORMATION],

To the best of my knowledge and belief the statements, representations, and declarations made by
the defendant in the foregoing Application are in all respects accurate and true.

(IF APPLICABLE) In my opinion the defendant’s waiver of indictment by grand jury is
voluntarily and knowingly made, and recommend to the Court that the waiver be accepted by the
Court.

my opinion the defendant’s waiver of reading the [COMPLAINT] [INDICTMENT]
open Court as provided in Rule 10 is voluntarily and knowingly made, and
e Court that the waiver be accepted by the Court.

I have explained the maximum and any mandatory minimum penalty for each count to the
defendant. I have explained to him that he may be ordered to make restitution under the Victim
and Witness Protection Act.

I have explained to the defendant that in imposing sentence, the sentencing judge is required to
consider the Sentencing Guidelines, and I have further explained how the Guidelines might apply
to this offense and to the defendant. I have further explained to the defendant that the Guidelines
are advisory, not mandatory, and that the sentencing judge may impose a sentence higher or lower
than that recommended by the Guidelines.

The plea of GUILTY offered by the defendant in Paragraph 43 accords with my understanding of
the facts related to me and is consistent with my advice to the defendant.

In my opinion the plea of GUILTY as offered by the defendant in Paragraph 43 of this Application

is voluntarily made with understanding of the consequences of the plea. I recommend that the
Court accept the plea of GUILTY.

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Signed by me in open Court in the presence of the defendant above named, and after full disclosure of the
contents of this Certification to the defendant, this _) lday of Oc 2005

Attorney orthe Defendant

9 DNJ-CR-12 (Rev.08/2010)


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