Opinion
21-cr-80178-Marra/Matthewman
02-24-2022
UNITED STATES OF AMERICA, v. KYLE EDWIN FIRESTONE, Defendant.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION FOLLOWING CHANGE OF PLEA HEARING
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
THIS CAUSE is before the Court upon Order of Reference from U.S. District Judge Kenneth A. Marra, DE 72, and the consent of the parties for a U.S. Magistrate Judge to conduct the change of plea hearing and accept a guilty plea for Defendant, Kyle Edwin Firestone (“Defendant”). The Court held an in-court change of plea hearing on February 23, 2022, which was attended by Defendant, his counsel Ann Marie Fitz, Esq., and Assistant U.S. Attorney John McMillan. The Court hereby advises as follows:
The Court advised Defendant of his right to have the hearing conducted by the presiding U.S. District Judge assigned to the case. The Court further advised Defendant that the undersigned U.S. Magistrate Judge was conducting the change of plea hearing and taking Defendant's plea of guilty by Order of Reference from the U.S. District Judge and as agreed to by Defendant, Defendant's attorney, and the Assistant United States Attorney. The Court further advised Defendant that his sentence would be imposed by the presiding U.S. District Judge, who would make all findings and rulings regarding such sentence and would conduct a sentencing hearing at a time set by the U.S. District Judge.
1. The Court advised Defendant that he did not have to consent to the undersigned conducting this hearing or taking his guilty plea and could require that the change of plea hearing be conducted by the U.S. District Judge. Defendant, Defendant's attorney, and the Assistant United States Attorney all agreed on the record and consented to this Court conducting the change of plea hearing and taking Defendant's guilty plea.
2. The Court then conducted a plea colloquy in accordance with the outline set forth in the Bench Book for U.S. District Judges and in conformity with the requirements of Federal Rule of Criminal Procedure 11.
3. A written plea agreement has been entered into by the parties in this case [DE 78]. This Court reviewed the plea agreement and had the Defendant acknowledge that he had reviewed and signed the plea agreement. This Court also made certain that Defendant was aware of any maximum sentences which could be imposed in this case pursuant to the plea agreement, sentencing guidelines, and applicable statutes.
4. Defendant acknowledged that he was fully satisfied with the services of his attorney, Ms. Fitz, and that he had full opportunity to discuss all facets of his case with his attorney.
5. Defendant knowingly and voluntarily with the advice of competent counsel pled guilty to the Counts 1 and 2 of the Indictment [DE 3], which charge Defendant with conspiracy to possess with intent to distribute a controlled substance, that is, 50 kilograms or more of a mixture and substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), respectively.
6. The parties filed a Plea Agreement [DE 78] and Stipulated Statement of Facts [DE 79], made part of the record and both signed by Defendant, defense counsel, and the Government. The Plea Agreement and Stipulated Statement of Facts, as orally supplemented by the prosecutor at the change of plea hearing, include all of the essential elements of and factual support for the offenses to which Defendant pled guilty. Defendant acknowledged that the written proffer and oral proffer were true and correct.
7. Defendant has been referred to the U.S. Probation Office for the preparation of a pre-sentence investigation report.
Accordingly, based upon the foregoing and the plea colloquy conducted by this Court, the undersigned
FINDS and RECOMMENDS that Defendant, Kyle Edwin Firestone, (1) be found to have freely, knowingly, and voluntarily entered a guilty plea Counts 1 and 2 of the Indictment, (2) that his guilty plea be accepted, (3) that he be adjudicated guilty of the offenses, and (4) that a sentencing hearing as scheduled by the U.S. District Judge be conducted for a final disposition of this matter. Sentencing is currently set for April 29, 2022 at 10:00 a.m. before the Honorable Kenneth A. Marra, United States District Judge.
NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with United States District Judge Kenneth A. Marra. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).