Preston

MEMORANDUM *

Defendant Jeremiah Clay Preston pleaded guilty to distributing a substance containing methamphetamine in violation of 21 U.S.C. § 841 (a)(1). Defendant aided and abetted a co-defendant in the sale of methamphetamine to a government informant. Additionally, he was present for, and participated in, a discussion between the co-defendant and the informant regarding a future drug sale. The district court considered the drug quantity of the proposed future sale as relevant conduct for purposes of calculating Defendant’s sentence. In this timely appeal, Defendant challenges his sentence.

1. Defendant appeals the district court’s drug quantity calculation. We review for clear error a district court’s factual findings at sentencing. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). The record shows that Defendant was informed that he was charged under an aiding and abetting theory of liability. See U.S.S.G. § 2D1.1 cmt. n. 12 (“If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g., sale of five grams of heroin and an attempt to sell an additional ten grams of heroin), the total quantity involved shall be aggregated to…

dissenting.

I respectfully dissent because I do not believe that Preston’s plea agreement was intelligently made. To be valid, a plea agreement must be voluntary and intelligent. Tollett v. Henderson, 411 U.S. 258, 267 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973). A plea is unintelligent where a defendant does not have “the information necessary to assess intelligently ‘the advantages and disadvantages of a trial as compared with those attending a plea of guilty.’ ” United States v. Hernandez, 203 F.3d 614, 619 (9th Cir.2000) (quoting Hill v. Lockhart, 474 U.S. 52, 56 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985)).

Preston pled guilty to count four of a six-count indictment. Count four states that Preston “did knowingly and unlawfully distribute a mixture or substance containing a detectable amount of methamphetamine.” Notably, Preston did not plead guilty to count six of the indictment, which referred to conspiring to distribute “over 50 grams” of a substance containing methamphetamine.

The plea agreement and the government’s written offer of proof presented at the change of plea hearing both refer to approximately 1/4 mince of methamphetamine, not the one pound of methamphetamine used…