Opinion
Case Number: 3:19-CR-00657-E(1)
02-04-2021
UNITED STATES OF AMERICA, v. ALBERT LEE BIRDSONG, III, Defendant.
REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY
ALBERT LEE BIRDSONG, III, by consent, under authority of United States v. Dees, 125 F.3d 261 (5th Cir. 1997), has appeared before me pursuant to Fed. R. Crim.P. 11, and has entered a plea of guilty to Count(s) 1s of the Superseding Information. After cautioning and examining ALBERT LEE BIRDSONG, III under oath concerning each of the subjects mentioned in Rule 11, I determined that the guilty plea was knowledgeable and voluntary and that the offense(s) charged is supported by an independent basis in fact containing each of the essential elements of such offense. I therefore recommend that the plea of guilty be accepted, and that ALBERT LEE BIRDSONG, III be adjudged guilty of 18 U.S.C. § 922(g)(9) and 924(a)(2) Possession of Ammunition by a Prohibited Person and have sentence imposed accordingly. After being found guilty of the offense by the district judge, [v] The defendant is currently in custody and should be ordered to remain in custody. [ ] The defendant must be ordered detained pursuant to 18 U.S.C. § 3143(a)(1) unless the Court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community if released.
[ ] The Government does not oppose release.[ ] The defendant must be ordered detained pursuant to 18 U.S.C. § 3143(a)(2) unless (1)(a) the Court finds there is a substantial likelihood that a motion for acquittal or new trial will be granted, or (b) the Government has recommended that no sentence of imprisonment be imposed, or (c) exceptional circumstances are clearly shown under § 3145(c) why the defendant should not be detained, and (2) the Court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community if released.
[ ] The defendant has been compliant with the current conditions of release.
[ ] I find by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community if released and should therefore be released under § 3142(b) or (c).
[ ] The Government opposes release.
[ ] The defendant has not been compliant with the conditions of release.
[ ] If the Court accepts this recommendation, this matter should be set for hearing upon motion of the Government.
Date: 4th day of February, 2021.
/s/_________
UNITED STATES MAGISTRATE JUDGE
NOTICE
Failure to file written objections to this Report and Recommendation within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. 28 U.S.C. §636(b)(1)(B). NOTICE REGARDING ENTRY OF A PLEA OF GUILTY
In the event the Defendant decides at any time before trial to enter a plea of guilty, the United States Magistrate Judge is authorized, in accordance with United States v. Dees, 125 F.3d 261 (5th Cir. 1997), with the consent of the Defendant, to conduct the proceedings required by Rule 11, F.R.Cr.P. incident to the making of the plea. If, after conducting such proceedings, the Magistrate Judge recommends that the plea of guilty be accepted, a presentence investigation and report will be ordered pursuant to Rule 32, F.R.Cr.P. The assigned United States District Judge will then act on the Magistrate Judge's Report and Recommendation and if the plea of guilty is accepted, will adjudicate guilt and schedule a sentencing hearing at which the District Judge will decide whether to accept or reject any associated plea agreement and will determine and impose sentence. The Defendant may file written objections to the Magistrate Judge's recommendation within fourteen (14) days from the date of the recommendation pursuant to 28 U.S.C. §636(b)(1)(B).
CONSENT
I hereby declare my intention to enter a plea of guilty in the above case and I request and consent to the United States Magistrate Judge conducting the proceedings required by Rule 11, F.R.Cr.P. incident to the making of such plea. I understand that if my plea of guilty is then accepted by the District Judge, the District Judge will decide whether to accept or reject any plea agreement I may have with the United States and will adjudicate guilt and impose sentence.
I acknowledge receipt of this document, given to me on this date.
Date: 4th day of February, 2021 /s/_________
ALBERT LEE BIRDSONG, III
/s/_________
Defendant's Attorney Case Number: 3:19-CR-00657-E ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE CONCERNING PLEA OF GUILTY
After reviewing all relevant matters of record, including the Notice Regarding Entry of a Plea of Guilty, the Consent of the defendant, and the Report and Recommendation Concerning Plea of Guilty of the United States Magistrate Judge, and no objections thereto having been filed within fourteen days of service in accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the opinion that the Report and Recommendation of the Magistrate Judge concerning the Plea of Guilty is correct, and it is hereby accepted by the Court. Accordingly, the Court accepts the plea of guilty, and ALBERT LEE BIRDSONG, III is hereby adjudged guilty of 18 U.S.C. § 922(g)(9) and 924(a)(2) Possession of Ammunition by a Prohibited Person. Sentence will be imposed in accordance with the Court's scheduling order. [ ] The defendant is ordered to remain in custody. [ ] The Court adopts the findings of the United States Magistrate Judge by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community if released and should therefore be released under § 3142(b) or (c). [ ] Upon motion, this matter shall be set for hearing before the United States Magistrate Judge who set the conditions of release for determination, by clear and convincing evidence, of whether the defendant is likely to flee or pose a danger to any other person or the community if released under § 3142(b) or (c). [ ] The defendant is ordered detained pursuant to 18 U.S.C. § 3143(a)(2). The defendant shall self-surrender to the United States Marshal no later than ___. [ ] The defendant is not ordered detained pursuant to 18 U.S.C. § 3143(a)(2) because the Court finds
[ ] There is a substantial likelihood that a motion for acquittal or new trial will be granted, or[ ] The defendant is not ordered detained pursuant to 18 U.S.C. § 3143(a)(2) pending determination of whether it has been clearly shown that there are exceptional circumstances under § 3145(c) why the defendant should not be detained under § 3143(a)(2), and whether it has been shown by clear and convincing evidence that the defendant is not likely to flee or pose a danger to any other person or the community if released under § 3142(b) or (c). This matter shall be referred to the United States Magistrate Judge who set the conditions of release.
[ ] The Government has recommended that no sentence of imprisonment be imposed, and
[ ] This matter shall be set for hearing before the United States Magistrate Judge who set the conditions of release for determination, by clear and convincing evidence, of whether the defendant is likely to flee or pose a danger to any other person or the community if released under § 3142(b) or (c).
SO ORDERED.
18th day of February, 2021.
/s/_________
ADA BROWN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS