Filed: Oct. 30, 2018
Latest Update: Oct. 30, 2018
Summary: REPORT AND RECOMMENDATION MARK A. ROBERTS , Magistrate Judge . On October 29, 2018, the above-named defendant appeared before the undersigned United States Magistrate Judge by consent and, pursuant to Federal Rule of Criminal Procedure 11, pleaded guilty to Counts 5 and 6 of the Fourth Superseding Indictment, Interfering and Attempting to Interfere with Commerce by Threats and Violence, and Aiding and Abetting such Offense, in violation of 18 U.S.C. Sections 2 and 1951; and Conspiracy to Co
Summary: REPORT AND RECOMMENDATION MARK A. ROBERTS , Magistrate Judge . On October 29, 2018, the above-named defendant appeared before the undersigned United States Magistrate Judge by consent and, pursuant to Federal Rule of Criminal Procedure 11, pleaded guilty to Counts 5 and 6 of the Fourth Superseding Indictment, Interfering and Attempting to Interfere with Commerce by Threats and Violence, and Aiding and Abetting such Offense, in violation of 18 U.S.C. Sections 2 and 1951; and Conspiracy to Com..
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REPORT AND RECOMMENDATION
MARK A. ROBERTS, Magistrate Judge.
On October 29, 2018, the above-named defendant appeared before the undersigned United States Magistrate Judge by consent and, pursuant to Federal Rule of Criminal Procedure 11, pleaded guilty to Counts 5 and 6 of the Fourth Superseding Indictment, Interfering and Attempting to Interfere with Commerce by Threats and Violence, and Aiding and Abetting such Offense, in violation of 18 U.S.C. Sections 2 and 1951; and Conspiracy to Commit the Offense Charged in Count 5, in violation of 18 U.S.C. Section 1951. After cautioning and examining Defendant under oath concerning each of the subjects mentioned in Rule 11, I determined that Defendant's decision to plead guilty was knowledgeable and voluntary, and the offense charged were supported by an independent basis in fact containing each of the essential elements of the offenses. I therefore RECOMMEND that the Court ACCEPT Defendant's guilty plea and adjudge Defendant guilty.
At the commencement of the Rule 11 proceeding, I placed Defendant under oath and explained that if Defendant answered any question falsely, the Government could prosecute Defendant for perjury or for making a false statement. I also advised Defendant that in any such prosecution, the Government could use against Defendant any statements made under oath.
I then asked Defendant a number of questions to ensure Defendant had the requisite mental capacity to enter a plea. I elicited Defendant's full name, age, and extent of education. I also inquired into Defendant's history of mental illness; use of illegal and/or prescription drugs; and use of alcohol. From this inquiry, I determined Defendant was not suffering from any mental disability that would impair Defendant's ability to make a knowing, intelligent, and voluntary guilty plea.
Defendant acknowledged receipt of a copy of the Fourth Superseding Indictment and further acknowledged that Defendant had fully discussed the Fourth Superseding Indictment with Defendant's counsel. Defendant acknowledged that Defendant had fully conferred with Defendant's counsel prior to deciding to plead guilty and that Defendant was satisfied with counsel's services.
I fully advised Defendant of all the rights Defendant would be giving up if Defendant decided to plead guilty, including the following:
1. The right to assistance of counsel at every stage of the case;
2. The right to a speedy, public trial;
3. The right to have the case tried by a jury selected from a cross-section of the community;
4. That Defendant would be presumed innocent, and would be found not guilty unless the Government could prove each and every element of the offense beyond a reasonable doubt;
5. That Defendant would have the right to see and hear all of the Government's witnesses, and Defendant's attorney would have the right to cross-examine any witnesses called by the Government;
6. That Defendant would have the right to subpoena witnesses to testify at the trial, and if Defendant could not afford to pay the costs of bringing these witnesses to court, then the government would pay those costs;
7. That Defendant would have the privilege against self-incrimination: i.e., Defendant could choose to testify at trial, but need not do so; if Defendant chose not to testify, then the Court would instruct the jury that it could not draw any adverse inference from Defendant's decision not to testify; and
8. That any verdict by the jury would have to be unanimous.
I explained that if Defendant pleaded guilty, Defendant would be giving up all of these rights, there would be no trial, and Defendant would be adjudged guilty just as if Defendant had gone to trial and a jury returned a guilty verdict against Defendant.
• Plea Agreement
I determined that the Parties have not entered into a plea agreement.
• Elements of Crime and Factual Basis
I summarized the charges against Defendant, and listed the elements of the crimes charged. I determined that Defendant understood each and every element of the crimes, and Defendant's counsel confirmed that Defendant understood each and every element of the crimes charged. For the offenses to which Defendant was pleading guilty, I elicited a full and complete factual basis for all elements of the crimes charged in the Fourth Superseding Indictment. Defendant's attorney indicated that the offenses to which Defendant was pleading guilty were factually supported.
• Sentencing
I explained to Defendant that the district judge will determine the appropriate sentence at the sentencing hearing. I explained that the Court will use the advisory United States Sentencing Guidelines to calculate Defendant's sentence. I explained that the sentence imposed might be different from what the advisory guidelines suggested it should be, and may be different from what Defendant's attorney had estimated.
I advised Defendant of the consequences of the guilty plea, including the maximum terms of imprisonment; the maximum terms of supervised release; and the maximum possible fines. Specifically, I advised Defendant that Count 5 of the Fourth Superseding Indictment is punishable by (1) up to twenty years in prison without the possibility of parole; (2) a period of supervised release following prison of not more than five years; and (3) a fine of not more than $250,000. Count 6 of the Fourth Superseding Indictment is punishable by (1) up to twenty years in prison without the possibility of parole; (2) a period of supervised release following prison of not more than five years; and (3) a fine of not more than $250,000. The sentence on each count may be ordered to be served concurrently or consecutively to the sentence on the other count.
I explained that the Court will impose conditions of supervised release, and that if Defendant violates a condition of supervised release, then the Court could revoke Defendant's supervised release and require Defendant to serve all or part of the term of supervised release in prison, without credit for time previously served on supervised release. I advised Defendant that regardless of the sentence imposed, there would be no possibility of parole. I also advised Defendant that the Court will impose a mandatory special assessment of $100.00, which Defendant must pay, and that he will be required to pay any restitution owed as a result of his guilty pleas.
I advised Defendant of the collateral consequences of pleading guilty. Defendant acknowledged understanding all of the above consequences.
I explained that a probation officer will prepare a written presentence investigation report and that Defendant and Defendant's counsel will have an opportunity to read the presentence report before the sentencing hearing, and will have the opportunity to object to the contents of the report. I further explained that Defendant and Defendant's counsel will be afforded the opportunity to present evidence and be heard at the sentencing hearing. I also explained that both the Government and Defendant have the right to appeal Defendant's sentence.
Defendant confirmed that the decision to plead guilty was voluntary; was not the result of any promises; and was not the result of anyone threatening, forcing, or pressuring Defendant to plead guilty. I explained that after the district judge accepts Defendant's guilty plea, Defendant will have no right to withdraw the plea at a later date, even if the sentence imposed is different from what Defendant anticipated.
Defendant confirmed that Defendant still wished to plead guilty, and Defendant pleaded guilty to Counts 5 and 6 of the Fourth Superseding Indictment.
I find the following with respect to the guilty plea:
1. Defendant's plea is voluntary; knowing; not the result of force, threats or promise; and Defendant is fully competent.
2. Defendant is aware of the minimum and maximum punishment for the counts to which he pleads guilty.
3. Defendant knows of and voluntarily waives Defendant's jury trial rights.
4. There is a factual basis for the plea.
5. Defendant is guilty of the crimes to which Defendant pleaded guilty.
• Forfeiture
Pursuant to Federal Rule of Criminal Procedure 32.2(b)(1), I found that the Government has established the requisite nexus between Defendant's offense and the firearm described in the Fourth Superseding Indictment's forfeiture allegation.
I explained that the Parties have fourteen (14) days from the filing of this Report and Recommendation to file any objections to my findings, and that if no objections are made, then the district judge may accept Defendant's guilty plea by simply entering a written order doing so. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). But see, United States v. Cortez-Hernandez, 673 Fed. App'x 587, 590-91 (8th Cir. 2016) (per curiam) (suggesting that a Defendant may have the right to de novo review of a magistrate judge's recommendation to accept a plea of guilty even if no objection is filed). The district court judge will undertake a de novo review of the Report and Recommendation if a written request for such review is filed within fourteen (14) days after this Report and Recommendation is filed.
