United States v. Aplicano-Osorto

Full title: UNITED STATES OF AMERICA v. WILMER JOSUE APLICANO-OSORTO

Court: United States District Court, Eastern District of Texas

Date published: Jul 14, 2021

9:21CR1 (E.D. Tex. Jul. 14, 2021)

Opinion

9:21CR1

07-14-2021

UNITED STATES OF AMERICA v. WILMER JOSUE APLICANO-OSORTO

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

FINDINGS OF FACT AND RECOMMENDATION ON GUILTY PLEA BEFORE THE UNITED STATES MAGISTRATE JUDGE

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

By order of the District Court, this matter was referred to the undersigned United States Magistrate Judge for administration of a guilty plea and allocution under Rules 11 and 32 of the Federal Rules of Criminal Procedure. Magistrate judges have the statutory authority to conduct a felony guilty plea proceeding as an “additional duty” pursuant to 28 U.S.C. § 636(b)(3). United States v. Bolivar-Munoz, 313 F.3d 253, 255 (5^th Cir. 2002), cert. denied, 123 S.Ct. 1642 (2003). On June 30, 2021, this cause came before the undersigned United States Magistrate Judge for entry of a guilty plea by the defendant, Wilmer Josue Aplicano-Osorto, on Count One of the charging Indictment filed in this cause.

Count One of the Indictment charges on or about December 16, 2020, in the Eastern District of Texas, Wilmer Josue Aplicano-Osorto, defendant, did knowingly possess an immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document, to wit: a Permanent Resident Card bearing the name of Victim 1 known to the grand jury, a USCIS# XXX-XXX-804 and/or a date of birth of 28 July 1995, which the defendant knew was forged, counterfeited, altered, or falsely made, or had been procured by means of a false claim or statement, or had been otherwise procured by fraud or unlawfully obtained and said card is prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, in violation of 18 U.S.C. § 1546(a).

Defendant, Wilmer Josue Aplicano-Osorto, entered a plea of guilty to Count One of the Indictment into the record at the hearing.

After conducting the proceeding in the form and manner prescribed by Federal Rule of Criminal Procedure 11 the Court finds:

a. That Defendant, after consultation with counsel of record, has knowingly, freely and voluntarily consented to the administration of the guilty plea in this cause by a United States Magistrate Judge in the Eastern District of Texas subject to a final approval and imposition of sentence by the District Court.

b. That Defendant is fully competent and capable of entering an informed plea, that Defendant is aware of the nature of the charges and the consequences of the plea, and that the plea of guilty is a knowing, voluntary and freely made plea. Upon addressing the Defendant personally in open court, the Court determines that Defendant's plea is voluntary and did not result from force, threats or promises. See FED. R. CRIM. P. 11(b)(2).

c. That Defendant's knowing, voluntary and freely made plea is supported by an independent factual basis establishing each of the essential elements of the offense and Defendant realizes that his conduct falls within the definition of the crimes charged under 18 U.S.C. § 1546(a).

STATEMENT OF REASONS

As factual support for Defendant's guilty plea, the Government presented a factual basis. See Factual Basis. In support, the Government and Defendant stipulated that if this case were to proceed to trial the Government would prove beyond a reasonable doubt, through the sworn testimony of witnesses, including expert witnesses, as well as through admissible exhibits, each and every essential element of the crime charged in Count One of the Indictment. The Government would also prove that the defendant is one and the same person charged in the Indictment and that the events described in Indictment occurred in the Eastern District of Texas and elsewhere. The Court incorporates the proffer of evidence described in detail in the factual basis and stipulation in support of the guilty plea.

Defendant, Wilmer Josue Aplicano-Osorto, agreed with and stipulated to the evidence presented in the factual basis. Counsel for Defendant and the Government attested to Defendant's competency and capability to enter an informed plea of guilty. The Defendant agreed with the evidence presented by the Government and personally testified that he was entering his guilty plea knowingly, freely and voluntarily.

RECOMMENDED DISPOSITION

IT IS THEREFORE the recommendation of the undersigned United States Magistrate Judge that the District Court accept the guilty plea of Defendant which the undersigned determines to be supported by an independent factual basis establishing each of the essential elements of the offense charged in Count One of the charging Indictment on file in this criminal proceeding. Accordingly, it is further recommended that, Defendant, Wilmer Josue Aplicano-Osorto, be finally adjudged as guilty of the charged offense under Title 18, United States Code, Section 1546(a).

Defendant is ordered to report to the United States Probation Department for the preparation of a presentence report. Defendant has the right to allocute before the District Court before imposition of sentence.

OBJECTIONS

Objections must be: (1) specific, (2) in writing, and (3) served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1). A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5^th Cir. 1988), and (2) appellate review, except on grounds of plain error of unobjected-to factual findings and legal conclusions accepted by the district court, see Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5^th Cir. 1996) (en banc). The constitutional safeguards afforded by Congress and the courts require that, when a party takes advantage of his right to object to a magistrate's findings or recommendation, a district judge must exercise its nondelegable authority by considering the actual evidence and not merely by reviewing and blindly adopting the magistrate's report and recommendation. See Hernandez v. Estelle, 711 F.2d 619, 620 (5^th Cir. 1983); United States v. Elsoffer, 644 F.2d 357, 359 (5^thCir. 1981) (per curiam).