Opinion
CR-19-08161-01-PCT-MTL CR-16-08135-01-PCT-MTL
02-09-2022
United States of America, Plaintiff, v. Gerald Naha, Jr., Defendant.
FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE UPON A PLEA OF GUILTY AND ADMISSION
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE.
Upon Defendant's request to enter a plea of guilty pursuant to Rule 11 of the Federal Rules of Criminal Procedure, and to enter an admission to a violation of supervised release violation pursuant to Rule 32.1, Federal Rules of Criminal Procedure, this matter came on for hearing before United States Magistrate Judge Michelle H. Burns on February 9, 2022, with the written consents of the Defendant, counsel for Defendant, and counsel for United States of America. After consultation with counsel Defendant has orally consented on the record to proceed via video conference and Defendant indicated his counsel is authorized to sign the plea agreement on his behalf after reviewing it in its entirety with counsel.
In consideration of that hearing and the statements made by the Defendant under oath, on the record, and in the presence of counsel, and the remarks of the Assistant United States Attorney and of counsel for Defendant, I FIND as follows:
(1) that Defendant understands the nature of the charge to which Defendant pleads and the elements of the offense to which Defendant is pleading guilty, and that Defendant understands the nature of the supervised release violation alleged and the nature of the violation being admitted;
(2) that Defendant understands the right to trial by jury and the right to a revocation hearing, and that Defendant understands the right to plead not guilty and to deny the supervised release allegation, to persist in the plea of not guilty and denial. Defendant understands the right to the assistance of counsel at trial and at the revocation hearing, and at every stage of the proceedings, the right to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and the right against compelled self-incrimination;
(3) that Defendant understands the maximum possible penalties for the offenses to which Defendant is pleading guilty, including the maximum disposition for the supervised release violation, including imprisonment, fine and supervised release, any mandatory minimum penalty, any applicable forfeiture, the effect of the supervised release term, and the Court's authority to order restitution and its obligation to impose a special assessment;
(4) that Defendant understands the Court's obligation to calculate the applicable sentencing guideline range and revocation disposition guideline range, to consider possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and that Defendant understands that the sentencing guidelines and revocation disposition guidelines are advisory, not mandatory, and that the Court may sentence outside those guidelines;
(5) that Defendant's plea of guilty and admission have been knowingly and voluntarily made and are not the result of force or threats or of promises apart from the plea agreement between the parties;
(6) that Defendant is competent to plead guilty and to enter an admission;
(7) that Defendant understands that statements under oath may later be used in a prosecution for perjury or false statement;
(8) that Defendant understands that by pleading guilty, is waiving the right to a jury trial and by admitting the supervised release violation is waiving the right to a revocation hearing;
(9) that Defendant understands the terms of the plea agreement provision waiving the right to appeal, or to collaterally attack the sentence and disposition of the supervised release violation, and has knowingly, intelligently and voluntarily waived those rights;
(10) that Defendant is satisfied with the representation provided by defense counsel;
(11) that there is a factual basis for Defendant's plea and admission;
I RECOMMEND that the plea of guilty and admission be accepted.
ORDER
IT IS HEREBY ORDERED that any objection to the guilty plea and admission proceedings and any request for supplementation of those proceedings be made by the parties in writing and shall be specific as to the objection or request made. All objections or requests for supplementation shall be filed within fourteen (14) days of the date of service of a copy of these findings unless extended by an Order of the assigned district judge.
IT IS FURTHER ORDERED no more than ten (10) character letters shall be submitted by defense counsel in criminal cases, unless otherwise ordered by the court.
IT IS FURTHER ORDERED original letters must be submitted by defense counsel in paper form with the original to the U.S. Probation Office and copies to the sentencing judge and opposing counsel at least five (5) business days prior to the hearing. Character letters shall not be mailed directly to the sentencing judge by any family members or other persons writing in support of the defendant. Character letters or a notice of such shall not be filed electronically unless otherwise ordered by the court.
IT IS FURTHER ORDERED that any motions for upward departure, downward departure and sentencing or disposition memoranda must be filed, at least, seven (7) business days prior to the sentencing and disposition date. Responses are due three (3) business days prior to the sentencing and disposition date. Any motion to continue sentencing and disposition must be filed promptly upon discovery of the cause for continuance and must state the cause with specificity. Motions to continue sentencing and disposition filed less than fourteen (14) days before sentencing and disposition are disfavored. If either party intends to call a speaker at sentencing, other than the Defendant, counsel must notify the Courtroom Deputy at least three (3) business days in advance.