Opinion
CRIMINAL NO. 1:15CR21
05-01-2015
UNITED STATES OF AMERICA, Plaintiff, v. DANIEL S. MCGARVEY, Defendant.
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ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S OPINION/REPORT RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE AND SCHEDULING SENTENCING HEARING
On April 13, 2015, defendant, Daniel S. McGarvey ("McGarvey"), appeared before United States Magistrate Judge John S. Kaull and moved for permission to enter a plea of GUILTY to Count One of the Indictment. McGarvey stated that he understood that the magistrate judge is not a United States District Judge, and consented to pleading before the magistrate judge. 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 McGarvey's statements during the plea hearing and the testimony of Lieutenant Gary Weaver, the magistrate judge found that McGarvey 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 15, 2015, the magistrate judge entered an Opinion/Report and Recommendation Concerning Plea of Guilty in Felony Case ("R&R") (dkt. no. 25) finding a factual basis for the plea and recommended that this Court accept McGarvey's plea of guilty to Count One 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. The magistrate judge 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. After which, the parties did not file any objections.
Accordingly, this Court ADOPTS the magistrate judge's R&R, ACCEPTS McGarvey's guilty plea, and ADJUGES him GUILTY of the crime charged in Count One 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 undertake a presentence investigation of DANIEL S. MCGARVEY, and prepare a presentence report for the Court;
2. The Government and McGarvey are to provide their versions of the offense to the probation officer by May 13, 2015;
3. The presentence report is to be disclosed to McGarvey, defense counsel, and the United States on or before June 29, 2015; 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 13, 2015;
5. The Office of Probation shall submit the presentence report with addendum to the Court on or before July 27, 2015; 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 10, 2015.
The magistrate judge remanded McGarvey to the custody of the United States Marshal Service.
The Court will conduct the sentencing hearing for the defendant on Thursday, August 20, 2015 at 10:30 A.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: May 1, 2015
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE