Opinion
Case No. 1:12-cr-22
10-29-2012
UNITED STATES OF AMERICA v. JOSEPH HARVEY
MATTICE / LEE
ORDER
Magistrate Judge Susan K. Lee filed a report and recommendation recommending the Court: (1) grant Defendant's motion to withdraw his not guilty plea to Counts One and Five of the six-count Indictment; (2) accept Defendant's plea of guilty to the lesser included offense of the charge in Count One, that is of conspiracy to manufacture and distribute five (5) grams or more of methamphetamine (actual) or fifty (50) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and Count Five, that is, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); (3) adjudicate Defendant guilty of the lesser included offense of the charge in Count One, that is of conspiracy to manufacture and distribute five (5) grams or more of methamphetamine (actual) or fifty (50) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and Count Five, that is, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); (4) defer a decision on whether to accept the plea agreement until sentencing; and (5) find Defendant shall remain in custody until sentencing in this matter [Doc. 86]. Neither party filed a timely objection to the report and recommendation. After reviewing the record, the Court agrees with the magistrate judge's report and recommendation. Accordingly, the Court ACCEPTS and ADOPTS the magistrate judge's report and recommendation [Doc. 86] pursuant to 28 U.S.C. § 636(b)(1) and ORDERS as follows:
(1) Defendant's motion to withdraw his not guilty plea to Counts One and Five of the Indictment is GRANTED;
(2) Defendant's plea of guilty to the lesser included offense of the charge in Count One, that is, of conspiracy to manufacture and distribute five (5) grams or more of methamphetamine (actual) or fifty (50) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and Count Five, that is, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) is ACCEPTED;
(3) Defendant is hereby ADJUDGED guilty of the lesser included offense of the charge in Count One, that is of conspiracy to manufacture and distribute five (5) grams or more of methamphetamine (actual) or fifty (50) grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and Count Five, that is, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c);
(4) A decision on whether to accept the plea agreement is DEFERRED until sentencing; and
(5) Defendant SHALL REMAIN in custody until sentencing in this matter which is scheduled to take place on Monday, January 14, 2013 at 9:00 a.m. before the Honorable Harry S. Mattice, Jr.
SO ORDERED.
ENTER:
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HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE