Opinion
Crim. Action No.: 1:20cr11
09-03-2020
UNITED STATES OF AMERICA, Plaintiff, v. BRIAN CUTRIGHT, Defendant.
( ) ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE [DKT. NO. 24] ACCEPTING GUILTY PLEA , AND SCHEDULING SENTENCING HEARING
On August 17, 2020, the Defendant, Brian Cutright ("Cutright"), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Count One of the Indictment, charging him with Unlawful Possession of a Firearm in violation of Title 18, United States Code, section 922(g)(3) and 924(a)(2). Cutright stated that he understood that the magistrate judge is not a United States District Judge, and Cutright consented to pleading before the magistrate judge. This Court referred Cutright'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 Cutright'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 Cutright was competent to enter a plea, that the plea was freely and voluntarily given, that Cutright was aware of the nature of 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") [Dkt. No. 24] finding a factual basis for the plea and recommending that this Court accept Cutright's plea of guilty to Count One of the Indictment.
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 Cutright nor the Government filed objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R [Dkt. No. 24], provisionally ACCEPTS Cutright's guilty plea, and ADJUDGES him GUILTY of the crime charged in Count One 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 Cutright, and prepare a presentence investigation report for the Court;
2. The Government and Cutright shall each provide their narrative descriptions of the offense to the Probation Officer by September 16, 2020;
3. The presentence investigation report shall be disclosed to Cutright, his counsel, and the Government on or before November 16, 2020; however, the Probation Officer shall not disclose any sentencing recommendations made pursuant to Fed. R. Crim. P. 32(e)(3);
4. Counsel may file written objections to the presentence investigation report on or before November 30, 2020;
5. The Office of Probation shall submit the presentence investigation report with addendum to the Court on or before December 14, 2020; and
6. Counsel may file any written sentencing memorandum or statements and motions for departure from the Sentencing Guidelines, including the factual basis for the same, on or before January 4, 2021.
The undersigned Magistrate Judge released Defendant on the terms of the Order Setting Conditions of Release entered herein [ECF No. 10]. The undersigned noted that the Defendant also remains in the custody of the State of West Virginia under house arrest pending further proceedings. The Government did not object to the Defendant's release.
The Court will conduct the Sentencing Hearing for Cutright on Friday, January 25, 2021, at 11:00 A.M., at the Clarksburg, 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 and all appropriate agencies. DATED: September 3, 2020
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE