Opinion
CRIMINAL NO. 1:16CR07-01
04-22-2016
UNITED STATES OF AMERICA, Plaintiff, v. JAMES LEON FISHER, a/k/a "D," Defendant.
( ) ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE (DKT. NO. 65) , ACCEPTING GUILTY PLEA , AND SCHEDULING SENTENCING HEARING
On April 6, 2016, the defendant, James Leon Fisher ("Fisher"), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Count Eight of the Indictment. After Fisher 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 Fisher's statements during the plea hearing and the testimony of John Rogers, of the West Virginia State Police, the magistrate judge found that Fisher 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 April 6, 2016, the magistrate judge entered a Report and Recommendation Concerning Plea of Guilty in Felony Case ("R&R") (dkt. no. 65) finding a factual basis for the plea and recommending that this Court accept Fisher's plea of guilty to Count Eight 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. The parties did not file any objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R, ACCEPTS Fisher's guilty plea, and ADJUGES him GUILTY of the crime charged in Count Eight 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 Fisher and prepare a presentence report for the Court;
2. The Government and Fisher are to provide their versions of the offense to the probation officer by May 5, 2016;
3. The presentence report is to be disclosed to Fisher, defense counsel, and the United States on or before July 5, 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 July 19, 2016;
5. The Office of Probation shall submit the presentence report with addendum to the Court on or before August 2, 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 August 16, 2016.
The magistrate judge remanded Fisher to the custody of the United States Marshal Service.
The Court will conduct the sentencing hearing for the defendant on Friday, August 26, 2016 at 1:00 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: April 22, 2016
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE