Plea Agreement — United States v. Horner (Dkt. 3, M.D. Pa.)

Summary

A plea agreement in United States v. Hayes Horner, No. 4:21-cr-00242-MWB, in the U.S. District Court for the Middle District of Pennsylvania, filed August 31, 2021 as Document 3. It is made by the United States Attorney for the Middle District of Pennsylvania and the defendant. The defendant agrees to waive indictment and plead guilty to a felony Information charging wire fraud under Title 18, United States Code, § 1343, which carries a maximum of 20 years of imprisonment, a fine of $250,000 and up to three years of supervised release. The agreement is signed by Assistant U.S. Attorney Phillip J. Caraballo for Acting U.S. Attorney Bruce D. Brandler and by defense counsel.

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Case 4:21-cr-00242-MWB Document 3 Filed 08/31/21 Page 1 of 38

                UNITED STATES DISTRICT COURT
              MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA
                                     No.
           v.

HAYES HORNER,                     : (electronically filed)
                      Defendant

                        PLEA AGREEMENT

     The following Plea Agreement is entered by the United States

Attorney for the Middle District of Pennsylvania and the above-

captioned defendant. Any reference to the United States or to the

Government in this Agreement shall mean the Office of the United

States Attorney for the Middle District of Pennsylvania.

A. Violation(s), Penalties, and Dismissal of Other Counts

    1. Waiver of Indictment/Plea of Guilty. The defendant agrees to

       waive indictment by a grand jury and plead guilty to a felony

       Information, which will be filed against the defendant by the

       United States Attorney for the Middle District of Pennsylvania.

       That Information will charge the defendant with a violation of

       Title 18, United States Code, § 1343, Wire Fraud. The

       maximum penalty for that offense is imprisonment for a period

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of 20 years, a fine of $250,000, a maximum term of supervised
release of three years, to be determined by the Court, which
shall be served at the conclusion of and in addition to any term
of imprisonment, the costs of prosecution, denial of certain
federal benefits, and an assessment in the amount of $100. At
the time the guilty plea is entered, the defendant shall admit to
the Court that the defendant is, in fact, guilty of the offense
charged in the Information. The defendant agrees that the
United States may, at its sole election, seek additional charges
in the event that any guilty plea entered or sentence imposed
pursuant to this Agreement is subsequently vacated, set aside,
or invalidated by any Court. The defendant further agrees to
waive any defenses to reinstatement of those charges, or the
filing of additional charges, based upon laches, the assertion of
speedy trial rights, any applicable statute of limitations, or any
other ground. The calculation of time under the Speedy Trial
Act for when trial must commence is tolled as of the date of the

defendant’s signing of this Agreement, until either (a) the

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defendant pleads guilty: or (b) a new date is set by the Court for
commencement of trial.

2. Term of Supervised Release. The defendant also understands

that the Court may impose a term of supervised release
following any sentence of imprisonment exceeding one year, or
when required by statute. The Court may require a term of
supervised release in any other case. In addition, the defendant
understands that as a condition of any term of supervised
release or probation, the Court must order that the defendant
cooperate in the collection of a DNA sample if the collection of a
sample is so authorized by law.

3. No Further Prosecution, Except Tax Charges. The United

States Attorney's Office for the Middle District of Pennsylvania
agrees that it will not bring any other criminal charges against
the defendant directly arising out of the defendant’s
involvement in the offense described above. However, nothing
in this Agreement will limit prosecution for criminal tax

charges, if any, arising out of those offenses.

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B. Fines and Assessments

4,

Fine. The defendant understands that the Court may impose a
fine pursuant to the Sentencing Reform Act of 1984. The willful
failure to pay any fine imposed by the Court, in full, may be
considered a breach of this Plea Agreement. Further, the
defendant acknowledges that willful failure to pay the fine may
subject the defendant to additional criminal violations and civil
penalties pursuant to Title 18, United States Code, § 3611, et
seq.

Alternative Fine. The defendant understands that under the

alternative fine section of Title 18, United States Code, § 3571,
the maximum fine quoted above may be increased if the Court
finds that any person derived pecuniary gain or suffered
pecuniary loss from the offense and that the maximum fine to
be imposed, if the Court elects to proceed in this fashion, could
be twice the amount of the gross gain or twice the amount of the

gross loss resulting from the offense.

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6. Inmate Financial Responsibility Program. If the Court orders a

fine or restitution as part of the defendant’s sentence, and the
sentence includes a term of imprisonment, the defendant agrees
to voluntarily enter the United States Bureau of Prisons-
administered program known as the Inmate Financial
Responsibility Program, through which the Bureau of Prisons
will collect up to 50% of the defendant’s prison salary, and up to
50% of the balance of the defendant’s inmate account, and apply
that amount on the defendant’s behalf to the payment of the
outstanding fine and restitution orders.

7. Special Assessment. The defendant understands that the Court

will impose a special assessment of $100, pursuant to the
provisions of Title 18, United States Code, § 3013. No later
than the date of sentencing, the defendant or defendant’s
counsel shall mail a check in payment of the special assessment
directly to the Clerk, United States District Court, Middle
District of Pennsylvania. If the defendant intentionally fails to

make this payment, that failure may be treated as a breach of
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this Plea Agreement and may result in further prosecution, the
filing of additional criminal charges, or a contempt citation.

8. Collection of Financial Obligations. In order to facilitate the

collection of financial obligations imposed in connection with

this case, the defendant consents and agrees:

a. to fully disclose all assets in which the defendant has an
interest or over which the defendant has control, directly or
indirectly, including those held by a spouse, nominee, or
other third party:

b. to submit to interviews by the Government regarding the
defendant’s financial status;

c. to submit a complete, accurate, and truthful financial
statement, on the form provided by the Government, to the
United States Attorney’s Office no later than 14 days
following entry of the guilty plea:

d. whether represented by counsel or not, to consent to contact
by and communication with the Government, and to waive

any prohibition against communication with a represented

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party by the Government regarding the defendant’s
financial status;

e. to authorize the Government to obtain the defendant’s
credit reports in order to evaluate the defendant’s ability to
satisfy any financial obligations imposed by the Court; and

f. to submit any financial information requested by the
Probation Office as directed, and to the sharing of financial
information between the Government and the Probation
Office.

C. Sentencing Guidelines Calculation

9. Determination of Sentencing Guidelines. The defendant and

counsel for both parties agree that the United States Sentencing
Commission Guidelines, which took effect on November 1, 1987,
and its amendments (the “Sentencing Guidelines”), will apply to
the offense or offenses to which the defendant is pleading guilty.
The defendant understands that the Sentencing Guidelines are
advisory and not binding on the Court. The defendant further

agrees that any legal and factual issues relating to the

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application of the Sentencing Guidelines to the defendant's
conduct, including facts to support any specific offense
characteristic or other enhancement or adjustment and the
appropriate sentence within the statutory maximums provided
for by law, will be determined by the Court after briefing, a pre-
sentence hearing, or a sentencing hearing.

10. Acceptance of Responsibility— Two/Three Levels. Ifthe

defendant can adequately demonstrate recognition and
affirmative acceptance of responsibility to the Government as
required by the Sentencing Guidelines, the Government will
recommend that the defendant receive a two- or three-level
reduction in the defendant’s offense level for acceptance of
responsibility. The third level, if applicable, shall be within the
discretion of the Government under U.S.S.G. § 3E1.1. The
failure of the Court to find that the defendant is entitled to a

reduction shall not be a basis to void this Agreement.

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11. Specific Sentencing Guidelines Recommendations. With respect

to the application of the Sentencing Guidelines to the
defendant's conduct, the parties agree to recommend as follows:
a. The actual and intended loss resulting from the offense is
more than $250,000 but less than $550,000, pursuant to
U.S.S.G. § 2B1.1(b)(1)(G).
Each party reserves the right to make whatever remaining
arguments it deems appropriate with regard to application of
the United States Sentencing Commission Guidelines to the
defendant's conduct. The defendant understands that any
recommendations are not binding upon either the Court or the
United States Probation Office, which may make different
findings as to the application of the Sentencing Guidelines to
the defendant’s conduct. The defendant further understands
that the United States will provide the Court and the United
States Probation Office all information in its possession that it
deems relevant to the application of the Sentencing Guidelines

to the defendant’s conduct.

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D. Sentencing Recommendation

12.

13.

Appropriate Sentence Recommendation. At the time of

sentencing, the United States may make a recommendation
that it considers appropriate based upon the nature and
circumstances of the case and the defendant’s participation in
the offense, and specifically reserves the right to recommend a
sentence up to and including the maximum sentence of
imprisonment and fine allowable, together with the cost of
prosecution.

Special Conditions of Probation/Supervised Release. If

probation or a term of supervised release is ordered, the United
States may recommend that the Court impose one or more
special conditions, including but not limited to the following:

a. The defendant be prohibited from possessing a firearm or

other dangerous weapon.

b. The defendant make restitution, if applicable, the payment

of which shall be in accordance with a schedule to be

determined by the Court.
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c. The defendant pay any fine imposed in accordance with a
schedule to be determined by the Court.

d. The defendant be prohibited from incurring new credit
charges or opening additional lines of credit without
approval of the Probation Office unless the defendant is in
compliance with the payment schedule.

e. The defendant be directed to provide the Probation Office
and the United States Attorney access to any requested
financial information.

f. The defendant be confined in a community treatment
center, halfway house, or similar facility.

g. The defendant be placed under home confinement.

h. The defendant be ordered to perform community service.

i. The defendant be restricted from working in certain types of
occupations or with certain individuals, if the Government

deems such restrictions to be appropriate.

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j. The defendant be directed to attend substance abuse
counseling, which may include testing to determine whether
the defendant is using drugs or alcohol.

k. The defendant be directed to attend psychiatric or
psychological counseling and treatment in a program
approved by the Probation Officer.

l. The defendant be denied certain federal benefits including
contracts, grants, loans, fellowships and licenses.

m. The defendant be directed to pay any state or federal taxes
and file any and all state and federal tax returns as
required by law.

E. Forfeiture of Assets
14. Forfeiture. The present Information seeks forfeiture of the
defendant’s interests in certain assets. In the event the United

States seeks to forfeit those assets through a civil proceeding,

the defendant understands that dismissal of the criminal

forfeiture allegation in no way limits the United States from

proceeding civilly against any assets owned or held by the

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defendant or any other party. Defendant agrees to settle any

civil and criminal forfeiture matters arising out of the offense of

conviction and its relevant conduct. The defendant agrees that
the defendant’s property constitutes proceeds of, is derived from
proceeds traceable to, or was used in any manner or part to
commit or facilitate the commission of the offense of conviction
and its relevant conduct. Defendant further agrees to the
following:

a. Forfeiture of all properties, real and personal listed in the
Forfeiture Allegation of the Information, including
approximately $100,583.66 derived from a PNC Bank
account in the name of Horner’s Towing & Recovery,
account number 9016496523:

b. Immediate entry of the preliminary order of forfeiture or the
filing of a civil complaint by the United States, pursuant to

Title 18, United States Code, § 981;

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c. Waiver of the right to personal service of all process and
naming of Leo Latella, Esq. as agent for service of all
process;

d. Waiver of the right to appear and contest any portion of the
forfeiture proceedings, including but not limited to, any
motion or proceeding for substitute assets;

e. The filing and entry of a consent decree of forfeiture;

f. Disclosure, no later than upon signing this Agreement, of all
persons and entities holding an equitable or legal interest in
the property, real or personal, subject to forfeiture pursuant
to this Agreement:

g. Concurrence in any motion necessary to be filed and signing
any documents necessary to effectuate forfeiture;

h. Payment of costs associated with the seizure, storage, and
maintenance of any asset being returned to the defendant
as a result of this Agreement:

i. Inthe event any assets are being returned to the defendant,

such return does not amount to having “substantially

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prevailed” in the pursuit of any claim, and to make no claim
against the United States or any of its agencies or
employees, including claims for attorney’s fees and costs of
litigation;

j. Waiver of any double jeopardy challenges the defendant
may have to any administrative or civil forfeiture actions,
pending or completed, arising out of the course of conduct
forming the basis for the forfeitures: and

k. Waiver of all constitutional, legal, and equitable claims
arising out of and defenses to the forfeiture of this property
in any proceeding, including any claim of innocent
ownership and any claim or defense under the Eighth
Amendment, including any claim of excessive fine.

15. Disclosure of Assets. This Agreement is entered by the United

States on the basis of the express representation that the
defendant is making full and complete disclosure of all assets
over which the defendant exercises control. The defendant

agrees to submit to a polygraph examination by an examiner

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16.

LY.

selected by the Government to verify the defendant's complete
and candid compliance with this provision of the Agreement.
The defendant also understands that a failure to make a full
disclosure or lack of candor revealed by a polygraph
examination would constitute a breach of this Agreement,
subjecting the defendant to the sanctions set forth in this
Agreement. Conditioned upon such full disclosure, the United
States agrees not to seek the seizure/forfeiture of any of the
defendant’s assets other than those set forth in this Agreement.

No Further Forfeiture. As the result of the forfeitures set forth

above, the United States agrees not to seek forfeiture of any
other asset known to the United States by defendant’s
disclosure to belong to the defendant or the defendant’s family.
This Agreement does not prevent the IRS from the collection of

taxes or the seizure of assets to satisfy those taxes.

Forfeiture of Interests/Passage of Clear Title/Destruction Order.
By this Agreement, the defendant agrees to forfeit all interests

in the assets set forth above and to take whatever steps are

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18.

necessary to pass clear title of those assets to the United States.
These steps include but are not limited to surrender of title;
signing of a consent decree; stipulating to facts regarding the
transfer and basis for the forfeitures: and concurrence in any
motion and signing any document necessary to effectuate such
transfers.

Destruction Order/Waivers. The defendant further agrees,

should the United States deem it appropriate, to the destruction
of the items seized during the course of the investigation. The
defendant agrees that the items may be destroyed by the
investigative agency with or without a court order authorizing
the destruction of the items seized. If the United States
determines that a destruction order should be obtained, the
defendant and defendant’s counsel hereby concur in a motion for
such an order. The defendant further agrees to waive all
interest in the assets in any administrative or judicial forfeiture
proceeding, whether criminal or civil, state or federal. The

defendant consents and waives all rights to compliance by the

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United States with any applicable deadlines under 18 U.S.C. §
983(a). Any related administrative claim filed by the defendant
is hereby withdrawn. The defendant agrees to consent to the
entry of orders of forfeiture for such property and waives the
requirements of Federal Rules of Criminal Procedure 32.2 and
43(a) regarding notice of the forfeiture in the charging
instrument, announcement of the forfeiture at sentencing, and
incorporation of forfeiture in the judgment.

F. Victims’ Rights and Restitution

19. Victims’ Rights. The defendant understands that pursuant to

the Victim and Witness Protection Act, the Crime Victims’

Rights Act, the Justice for All Act, and the regulations

promulgated under those Acts by the Attorney General of the

United States, crime victims have the following rights:

a. The right to be reasonably protected from the accused;

b. The right to reasonable, accurate, and timely notice of any
public court proceeding or any parole proceeding involving

the crime, or of any release or escape of the accused:

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c. The right not to be excluded from any such public court
proceeding, unless the Court, after receiving clear and
convincing evidence, determines that testimony by the
victim would be altered materially if the victim heard other
testimony at that proceeding;

d. The right to be reasonably heard at any public hearing in
the Court involving release, plea, sentencing, or any parole
proceeding. The defendant understands that the victims’
comments and recommendations at any of these proceedings
may be different than those of the parties to this
Agreement:

e. The reasonable right to confer with the attorney for the
Government in the case. The defendant understands that
the victims’ opinions and recommendations given to the
attorney for the Government may be different than those
presented by the United States as a consequence of this

Agreement;

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f. The right to full and timely restitution as provided for by
law. The attorney for the Government is required to “fully
advocate the rights of victims on the issue of restitution
unless such advocacy would unduly prolong or complicate
the sentencing proceeding,” and the Court is authorized to
order restitution by the defendant including, but not limited
to, restitution for property loss, economic loss, personal
injury, or death;

g. The right to proceedings free from unreasonable delay; and

h. The right to be treated with fairness and with respect for
the victim’s dignity and privacy.

20. Restitution. The defendant acknowledges that, pursuant to the
Mandatory Restitution Act of April 24, 1996, Title 18, United
States Code, § 3663A, the Court is required in all instances to
order full restitution to all victims for the losses those victims
have suffered as a result of the defendant’s conduct. The
defendant also agrees that the Government will seek and the

Court may impose an order of restitution as to victims of the

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defendant’s relevant conduct. With respect to the payment of
restitution, the defendant further agrees that, as part of the
sentence in this matter, the defendant shall be responsible for
making payment of restitution in full, unless the defendant can
demonstrate to the satisfaction of the Court that the defendant’s
economic circumstances do not allow for the payment of full
restitution in the foreseeable future, in which case the
defendant will be required to make partial restitution
payments. In addition to the schedule of payments that may be
established by the Court, the defendant understands and agrees
that, pursuant to the Mandatory Victims Restitution Act of
1996 and the Justice For All Act of 2004, victims of federal
crimes are entitled to full and timely restitution. As such, these
payments do not preclude the Government from using other
assets or income of the defendant to satisfy the restitution
obligation. The defendant understands and agrees that the
United States Attorney’s Office, by and through the Financial

Litigation Unit, has the obligation and the right to pursue any
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legal means, including but not limited to, submission of the debt
to the Treasury Offset Program, to collect the full amount of
restitution owed to the victims in a timely fashion. Although
the defendant may reserve the right to contest the amount of
restitution owed, the defendant agrees to take all steps to
facilitate collection of all restitution, including submitting to
debtor’s exams as directed by the Government. Towards this
goal, the defendant agrees to waive any further notice of
forfeiture and agrees that the United States may, at its sole
election, elect to pursue civil or criminal forfeiture in the
amount of the victim restitution owed in this case, and the
Court may enter both a restitution order and a forfeiture
judgment in the amount of any unpaid restitution found by the
Court to be due and owing at the time of sentencing in this
matter. The defendant consents to the filing of any civil
complaint or superseding information which may be necessary
to perfect a forfeiture order and further stipulates and agrees

that the defendant's guilty plea constitutes an admission to all

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21.

matters legally and factually necessary for entry of a forfeiture
order in this case. The parties agree that the Government will
recommend, but cannot guarantee, that any assets recovered
through forfeiture proceedings be remitted to crime victims to
reduce the defendant’s restitution obligation in this case. The
defendant acknowledges that the making of any payments does
not preclude the Government from using other assets or income
of the defendant to satisfy the restitution obligation. The
defendant understands that the amount of restitution
calculated for purposes of Chapter 5 of the Sentencing
Guidelines might be different from the amount of loss calculated
for purposes of Chapter 2 of the Sentencing Guidelines.

Full Restitution. The defendant agrees to make full restitution

in the amount of $158,900, in accordance with a schedule to be
determined by the Court. The defendant also agrees that full
restitution shall be a condition of any probation or term of

supervised release that the defendant receives.

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G. Information Provided to Court and Probation Office

22.

23.

Background Information for Probation Office. The defendant

understands that the United States will provide to the United
States Probation Office all information in its possession that the
United States deems relevant regarding the defendant's
background, character, cooperation, if any, and involvement in
this or other offenses.

Objections to Pre-Sentence Report. The defendant understands

that pursuant to the United States District Court for the Middle
District of Pennsylvania’s “Policy for Guideline Sentencing,”
both the United States and defendant must communicate to the
Probation Officer within 14 days after disclosure of the pre-
sentence report any objections they may have as to material
information, sentencing classifications, applicable Sentencing
Guidelines ranges, and policy statements contained in or
omitted from the report. The defendant agrees to meet with the
United States at least five days prior to sentencing in a good

faith attempt to resolve any substantive differences. If any
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24.

issues remain unresolved, they shall be communicated to the
Probation Officer for inclusion in an addendum to the pre-
sentence report. The defendant agrees that unresolved
substantive objections will be decided by the Court after
briefing, a pre-sentence hearing, or at the sentencing hearing,
where the standard or proof will be a preponderance of the
evidence, and the Federal Rules of Evidence, other than with
respect to privileges, shall not apply under Fed. R. Evid.
1101(d)(3), and the Court may consider any reliable evidence,
including hearsay. Objections by the defendant to the pre-
sentence report or the Court’s rulings, will not be grounds for
withdrawal of a plea of guilty.

Relevant Sentencing Information. At sentencing, the United

States will be permitted to bring to the Court’s attention, and
the Court will be permitted to consider, all relevant information
about the defendant’s background, character and conduct,
including the conduct that is the subject of the charges that the

United States has agreed to dismiss, and the nature and extent

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of the defendant’s cooperation, if any. The United States will be
entitled to bring to the Court’s attention and the Court will be
entitled to consider any failure by the defendant to fulfill any
obligation under this Agreement.

25. Non-Limitation on Government’s Response. Nothing in this

Agreement shall restrict or limit the nature or content of the
United States’ motions or responses to any motions filed on
behalf of the defendant. Nor does this Agreement in any way
restrict the Government in responding to any request by the
Court for briefing, argument or presentation of evidence
regarding the application of Sentencing Guidelines to the
defendant’s conduct, including but not limited to, requests for

information concerning possible sentencing departures.

H. Court Not Bound by Plea Agreement

26. Court Not Bound by Terms. The defendant understands that

the Court is not a party to and is not bound by this Agreement,
or by any recommendations made by the parties. Thus, the

Court is free to impose upon the defendant any sentence up to

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and including the maximum sentence of imprisonment for 20
years, a fine of $250,000, a maximum term of supervised release
of up to three years, which shall be served at the conclusion of
and in addition to any term of imprisonment, the costs of
prosecution, denial of certain federal benefits, and assessments
totaling $100.

27. No Withdrawal of Plea Based on Sentence or Recommendations.

If the Court imposes a sentence with which the defendant is
dissatisfied, the defendant will not be permitted to withdraw
any guilty plea for that reason alone, nor will the defendant be
permitted to withdraw any guilty plea should the Court decline
to follow any recommendations by any of the parties to this
Agreement.

I. Breach of Plea Agreement by Defendant

28. Breach of Agreement. In the event the United States believes

the defendant has failed to fulfill any obligation under this
Agreement, then the United States shall, in its discretion, have

the option of petitioning the Court to be relieved of its
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29.

obligations under this Agreement. Whether the defendant has
completely fulfilled all of the obligations under this Agreement
shall be determined by the Court in an appropriate proceeding,
during which any disclosures and documents provided by the
defendant shall be admissible, and during which the United
States shall be required to establish any breach by a
preponderance of the evidence. In order to establish any breach
by the defendant, the United States is entitled to rely on
statements and evidence given by the defendant during the
cooperation phase of this Agreement, if any.

Remedies for Breach. The defendant and the United States

agree that in the event the Court concludes that the defendant

has breached the Agreement:

a. The defendant will not be permitted to withdraw any guilty
plea tendered under this Agreement and agrees not to

petition for withdrawal of any guilty plea:

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b. The United States will be free to make any
recommendations to the Court regarding sentencing in this
case;

c. Any evidence or statements made by the defendant during
the cooperation phase of this Agreement, if any, will be
admissible at any trials or sentencings;

d. The United States will be free to bring any other charges it
has against the defendant, including any charges originally
brought against the defendant or which may have been
under investigation at the time of the plea. The defendant
waives and hereby agrees not to raise any defense to the
reinstatement of these charges based upon collateral
estoppel, Double Jeopardy, statute of limitations, assertion
of Speedy Trial rights, or other similar grounds.

30. Violation of Law While Plea or Sentence Pending. The

defendant understands that it is a condition of this Agreement
that the defendant refrain from any further violations of state,

local, or federal law while awaiting plea and sentencing. The

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defendant acknowledges and agrees that if the Government
receives information that the defendant has committed new
crimes while awaiting plea or sentencing in this case, the
Government may petition the Court and, if the Court finds by a
preponderance of the evidence that the defendant has
committed any other criminal offense while awaiting plea or
sentencing, the Government shall be free at its sole election to
either: (a) withdraw from this Agreement: or (b) make any
sentencing recommendations to the Court that it deems
appropriate. The defendant further understands and agrees
that, if the Court finds that the defendant has committed any
other offense while awaiting plea or sentencing, the defendant
will not be permitted to withdraw any guilty pleas tendered
pursuant to this Agreement, and the government will be
permitted to bring any additional charges that it may have

against the defendant.

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J. Deportation

31. Deportation/Removal from the United States. The defendant

understands that, if defendant is not a United States citizen,
deportation/removal from the United States is a consequence of
this plea. The defendant further agrees that this matter has
been discussed with counsel who has explained the immigration
consequences of this plea. The defendant still desires to enter
into this plea after having been so advised.

K. Appeal Waiver

32. Appeal Waiver — Direct. The defendant is aware that Title 28,

United States Code, § 1291 affords a defendant the right to
appeal a judgment of conviction and sentence; and that Title 18,
United States Code, § 3742(a) affords a defendant the right to
appeal the sentence imposed. Acknowledging all of this, the
defendant knowingly waives the right to appeal the conviction
and sentence. This waiver includes any and all possible
grounds for appeal, whether constitutional or non-

constitutional, including, but not limited to, the manner in

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33.

which that sentence was determined in light of United States v.
Booker, 543 U.S. 220 (2005). The defendant further
acknowledges that this appeal waiver is binding only upon the
defendant and that the United States retains its right to appeal
in this case.

Collateral Appeal Waiver. The defendant acknowledges,

understands and agrees that, by pleading guilty pursuant to
this Agreement, the defendant voluntarily and knowingly
waives the right to collaterally attack the defendant’s
conviction, sentence, or any other matter relating to this
prosecution, including but not limited to a motion to vacate
judgment under Title 28, United States Code, Section 2255; a
petition for a writ of habeas corpus under Title 28, United
States Code, Section 2241; or any other motion or writ seeking
collateral relief. However, no provision of this agreement shall
preclude the defendant from pursuing in an appropriate forum
any appeal, collateral attack, writ, or motion claiming that the

defendant received constitutionally ineffective assistance of
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o4.

counsel. In the event the defendant raises a claim of ineffective
assistance of counsel, the defendant hereby agrees (a) that the
Government retains its right to oppose any such claim on
procedural or substantive grounds; and (b) that counsel for the
United States may confer with any of the defendant’s prior
counsel whose performance is attacked in such a claim, for
purposes of preparing any response or for any hearing
necessitated by the filing of such a claim.

Appeal Waiver Breach. The defendant acknowledges that

pursuing a direct appeal or any collateral attack waived in the
preceding paragraph(s) may constitute a breach of this
Agreement. The Government agrees that the mere filing of a
notice of appeal is not a breach of the Agreement. The
Government may declare a breach only after the defendant or
the defendant’s counsel thereafter states, either orally or in
writing, a determination to proceed with an appeal or collateral
attack raising an issue the Government deems barred by the

waiver. The parties acknowledge that the pursuit of an appeal

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or any collateral attack constitutes a breach only if a court
determines that the appeal or collateral attack does not present
an issue that a judge may reasonably conclude is permitted by
an exception to the waiver stated in the preceding paragraph(s)
or constitutes a “miscarriage of justice” as that term is defined

in applicable law.

L. Other Provisions

35.

36.

Agreement Not Binding on Other Agencies. Nothing in this

Agreement shall bind any other United States Attorney’s Office,
state prosecutor's office, or federal, state or local law
enforcement agency.

No Civil Claims or Suits. The defendant agrees not to pursue or

initiate any civil claims or suits against the United States of
America, its agencies or employees, whether or not presently
known to the defendant, arising out of the investigation,
prosecution or cooperation, if any, covered by this Agreement,
including but not limited to any claims for attorney’s fees and

other litigation expenses arising out of the investigation and

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37.

38.

prosecution of this matter. By the defendant’s guilty plea in
this matter the defendant further acknowledges that the
Government’s position in this litigation was taken in good faith,
had a substantial basis in law and fact and was not vexatious.

Plea Agreement Serves Ends of Justice. The United States is

entering this Agreement with the defendant because this
disposition of the matter fairly and adequately addresses the
gravity of the offense(s) from which the charge(s) is/are drawn,
as well as the defendant’s role in such offense(s), thereby
serving the ends of justice.

Merger of All Prior Negotiations. This document states the

complete and only Agreement between the United States
Attorney for the Middle District of Pennsylvania and the
defendant in this case, and is binding only on the parties to this
Agreement and supersedes all prior understandings or plea
offers, whether written or oral. This agreement cannot be
modified other than in writing that is signed by all parties or on

the record in court. No other promises or inducements have

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39.

been or will be made to the defendant in connection with this
case, nor have any predictions or threats been made in
connection with this plea. Pursuant to Rule 11 of the Federal
Rules of Criminal Procedure, the defendant certifies that the
defendant’s plea is knowing and voluntary, and is not the result
of force or threats or promises apart from those promises set
forth in this Agreement.

Defendant is Satisfied with Assistance of Counsel. The

Defendant agrees that the defendant has discussed this case
and this Agreement in detail with the defendant’s attorney, who
has advised the defendant of the defendant’s Constitutional and
other trial and appellate rights, the nature of the charges, the
elements of the offenses the United States would have to prove
at trial, the evidence the United States would present at such
trial, possible defenses, the advisory Sentencing Guidelines and
other aspects of sentencing, potential losses of civil rights and
privileges, and other potential consequences of pleading guilty

in this case. The defendant agrees that the defendant is

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40.

41.

satisfied with the legal services and advice provided to the
defendant by the defendant’s attorney.

Deadline for Acceptance of Plea Agreement. The original of this

Agreement must be signed by the defendant and defense
counsel and received by the United States Attorney’s Office on
or before 5:00 p.m., June 4, 2021, otherwise the offer may, in the
sole discretion of the Government, be deemed withdrawn.

Required Signatures. None of the terms of this Agreement shall

be binding on the Office of the United States Attorney for the
Middle District of Pennsylvania until signed by the defendant
and defense counsel and then signed by the United States

Attorney or his designee.

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ACKNOWLEDGMENTS

I have read this agreement and carefully reviewed every part of it
with my attorney. I fully understand it and I voluntarily agree to it.

oe kag HORNER
Defendant

I am the defendant’s counsel. I have carefully reviewed every part
of this agreement with the defendant. To my knowledge, my client’s
decision to enter into this agreement is an informed and voluntary one.

Y/23/a/ TT —

ate LE@TATELLA, ESQ.
Couysel for Defendant

BRUCE D. BRANDLER
Acting United States Attorney

8/30/41 y La >

Date PHILLIP J. CARABALLO
Assistant United States Attorney

38

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