Opinion
Crim. Action No.: 1:20CR14
03-31-2021
UNITED STATES OF AMERICA, Plaintiff, v. LANCE MCCLENDON, Defendant.
( ) ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE [DKT. NO. 41] , ACCEPTING GUILTY PLEA , AND SCHEDULING SENTENCING HEARING
On March 12, 2021, the Defendant, Lance McClendon ("McClendon"), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Count Two of the Indictment, charging him with Possession with Intent to Distribute Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(C). McClendon stated that he understood that the magistrate judge is not a United States District Judge, and McClendon consented to pleading before the magistrate judge. This Court referred McClendon'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 McClendon'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 McClendon was competent to enter a plea, that the plea was freely and voluntarily given, that McClendon 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. 41] finding a factual basis for the plea and recommending that this Court accept McClendon's plea of guilty to Count Two of the Indictment. Though The R&R [Dkt. No. 41] in this matter contains a Scrivener's error, mistakenly referencing that Defendant pleaded to Count Three, the recorded proceedings before the magistrate judge confirm that the Defendant in fact pleaded to Count Two of the Indictment [ECF No. 1] and the R&R was otherwise substantively sound.
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 McClendon nor the Government filed objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R [Dkt. No. 41], provisionally ACCEPTS McClendon's guilty plea to Count Two of the Indictment, and ADJUDGES him GUILTY of the crime charged in Count Two 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 McClendon, and prepare a presentence investigation report for the Court;
2. The Government and McClendon shall each provide their narrative descriptions of the offense to the Probation Officer by April 16, 2021;
3. The presentence investigation report shall be disclosed to McClendon, his counsel, and the Government on or before June 15, 2021; 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 June 29, 2021;
5. The Office of Probation shall submit the presentence investigation report with addendum to the Court on or before July 13, 2021; 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 July 19, 2021.
The magistrate judge remanded Defendant to the custody of the United States Marshals Service to be returned to the custody of the State of West Virginia.
The Court will conduct the Sentencing Hearing for McClendon on July 26, 2021, at 1:00 p.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: March 31, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE