Opinion
CRIMINAL NO. 1:15CR69-2
11-16-2015
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL T. FIGUEROA, Defendant.
( ) ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE (DKT. NO. 49) AND SCHEDULING SENTENCING HEARING
On October 29, 2015, the defendant, Michael T. Figueroa ("Figueroa"), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Count Three of the Indictment. After Figueroa stated that he understood that the magistrate judge is not a United States District Judge, he consented to tendering his plea before the magistrate judge. Previously, this Court had referred the guilty plea to the magistrate judge for the purposes 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 Figueroa's statements during the plea hearing and the testimony of John W. Smith, West Virginia State Police Department, the magistrate judge found that Figueroa was competent to enter a plea, that the plea was freely and voluntarily given, that he 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. On October 29, 2015, the magistrate judge entered a Report and Recommendation Concerning Plea of Guilty in Felony Case ("R&R") (dkt. no. 49) finding a factual basis for the plea and recommended that this Court accept Figueroa's plea of guilty to Count Three 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 directed 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. The parties did not file any objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R, ACCEPTS Figueroa's guilty plea, and ADJUGES him GUILTY of the crime charged in Count Three of the Indictment.
Pursuant to Fed. R. Crim. P. 11(e)(2) 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 report prepared in this matter.
Pursuant to U.S.S.G. § 6A1 et seq., the Court ORDERS as follows:
1. The Probation Officer shall undertake a presentence investigation of MICHAEL T. FIGUEROA, and prepare a presentence report for the Court;
2. The Government and Figueroa are to provide their versions of the offense to the probation officer by November 30, 2015;
3. The presentence report is to be disclosed to Figueroa, defense counsel, and the United States on or before January 15, 2016; however, the Probation Officer is not to disclose the sentencing recommendations made pursuant to Fed. R. Crim. P. 32(e)(3);
4. Counsel may file written objections to the presentence report on or before January 29, 2016;
5. The Office of Probation shall submit the presentence report with addendum to the Court on or before February 12, 2016; and
6. Counsel may file any written sentencing statements and motions for departure from the Sentencing Guidelines, including the factual basis from the statements or motions, on or before February 26, 2016.
The magistrate judge continued Figueroa on bond pursuant to the Order Setting Conditions of Release (dkt. no. 33) included in the Rule5(c)(3) documents received on September 3, 2015.
The Court will conduct the sentencing hearing for the defendant on Wednesday, March 9, 2016 at 1:30 P.M. at the Clarksburg, West Virginia point of holding court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record, the defendant and all appropriate agencies. DATED: November 16, 2015
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE