Opinion
Crim. Action 2:22-CR-30
05-30-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA ERVIN CAVE, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE [ECF NO. 48], ACCEPTING GUILTY PLEA, AND SCHEDULING SENTENCING HEARING
THOMAS S. KLEEH, CHIEF DISTRICT JUDGE
On May 9, 2023, the Defendant, Joshua Ervin Cave (“Cave”), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Counts One and Two of the Indictment. In Count One of the Indictment, Cave is charged with Possession with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and in Count Two of the Indictment, Cave is charged with Unlawful Possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). Cave stated that he understood that the magistrate judge is not a United States District Judge, and Cave consented to pleading before the magistrate judge.
This Court referred Cave's plea of guilty to the magistrate judge for the purpose of administering the allocution, pursuant to Federal Rule of Criminal Procedure 11, making a finding as to whether the plea was knowingly and voluntarily entered, and recommending to this Court whether the plea should be accepted.
Based upon Cave's statements during the plea hearing, and the Government's proffer establishing that an independent factual basis for the plea existed, the magistrate judge found that Cave was competent to enter a plea, that the plea was freely and voluntarily given, that Cave understood the charges against him and the consequences of his plea, and that a factual basis existed for the tendered plea. The magistrate judge issued a Report and Recommendation Concerning Plea of Guilty in Felony Case (“R&R”) [ECF No. 48] finding a factual basis for the plea and recommending that this Court accept Cave's plea of guilty to Counts One and Two of the Indictment.
The magistrate judge remanded Cave to the custody of the United States Marshals Service.
The magistrate judge also directed the parties to file any written objections to the R&R within fourteen (14) days after service of the R&R. He further advised that failure to file objections would result in a waiver of the right to appeal from a judgment of this Court based on the R&R. Neither Cave nor the Government filed objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R [ECF No. 48], provisionally ACCEPTS Cave's guilty plea, and ADJUDGES him GUILTY of the crimes charged in Counts One and Two of the Indictment.
Pursuant to Fed. R. Crim. P. 11(c)(3) and U.S.S.G. § 6B1.1(c), the Court DEFERS acceptance of the proposed plea agreement until it has received and reviewed the presentence investigation report prepared in this matter.
Pursuant to U.S.S.G. § 6A1 et seq., the Court ORDERS the following:
1. The Probation Officer shall undertake a presentence investigation of Cave, and prepare a presentence investigation report for the Court;
2. The Government and Cave shall each provide their narrative descriptions of the offense to the Probation Officer by June 5, 2023;
3. The presentence investigation report shall be disclosed to Cave, his counsel, and the Government on or before July 20, 2023; however, the Probation Officer shall not disclose any sentencing recommendations made pursuant to Fed. R. Crim. P. 32(e)(3);
4. Written objections to the presentence investigation report, if any, shall be submitted to the opposing party and to the probation officer on or before August 3, 2023;
5. Responses to objections to the presentence investigation report, if any, shall be submitted to the opposing party and to the probation officer on or before August 10, 2023;
6. The Office of Probation shall submit the presentence investigation report with addendum to the Court on or before September 7, 2023; and
7. Counsel may file any written sentencing memoranda or statements and motions for departure from the Sentencing Guidelines, including the factual basis for the same, on or before September 18, 2023.
The Court further ORDERS that prior to sentencing, Cave's counsel shall review with him the revised Standard Probation and Supervised Release Conditions adopted by this Court on November 29, 2016, pursuant to the standing order entered by Chief Judge Groh, In Re: Revised Standard Probation and Supervised Release Conditions, 3:16-MC-56. The Office of Probation and the United States are DIRECTED to sit at separate tables throughout the sentencing hearing.
The Court will conduct the Sentencing Hearing for Cave on October 12, 2023, at 1:30 p.m., at the Elkins, West Virginia, point of holding court. If counsel anticipates having multiple witnesses or an otherwise lengthy sentencing hearing, please notify the Judge's chamber staff so that an adequate amount of time can be scheduled.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record, the Office of Probation, and the United States Marshals Service.