Opinion
Crim. Action 1:21-CR-34
10-27-2021
UNITED STATES OF AMERICA, Plaintiff, v. CHARLES E. MCGHEE, JR., Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS [DKT. NOS. 56 AND 57], ACCEPTING GUILTY PLEA, AND SCHEDULING SENTENCING HEARING
THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE
On October 5, 2021, the Defendant, Charles E. McGhee, Jr. (“McGhee”), appeared before United States Magistrate Judge Michael J. Aloi and moved for permission to enter a plea of GUILTY to Count One 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). McGhee stated that he understood that the magistrate judge is not a United States District Judge, and McGhee consented to pleading before the magistrate judge. This Court referred McGhee'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 McGhee'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 McGhee was competent to enter a plea, that the plea was freely and voluntarily given, that McGhee 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. 56] finding a factual basis for the plea and recommending that this Court accept McGhee's plea of guilty to Count One of the Indictment.
The magistrate judge released Defendant on the terms of the Order Setting Conditions of Release. [ECF No. 25].
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 McGhee nor the Government filed objections to the R&R.
Accordingly, this Court ADOPTS the magistrate judge's R&R [Dkt. No. 56], provisionally ACCEPTS McGhee's guilty plea, and ADJUDGES him GUILTY of the crime charged in Count One 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 McGhee, and prepare a presentence investigation report for the Court;
2. The Government and McGhee shall each provide their narrative descriptions of the offense to the Probation Officer by November 8, 2021;
3. The presentence investigation report shall be disclosed to McGhee, his counsel, and the Government on or before January 7, 2022; 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 January 21, 2022;
5. The Office of Probation shall submit the presentence investigation report with addendum to the Court on or before February 4, 2022; 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 February 18, 2022.
The Court further ORDERS that prior to sentencing, counsel for Defendant review with him the revised Standard Probation and Supervised Release Conditions adopted by this Court on November 29, 2016, pursuant to the standing order entered by Chief Judge Groh, In Re: Revised Standard Probation and Supervised Release Conditions, 3:16-MC-56.
The Court will conduct the Sentencing Hearing for McGhee on March 1, 2022, at 2:00 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.
Also pending before the Court is a motion to suppress evidence and statement filed by Defendant McGhee through counsel. [ECF No. 27]. For the reasons set forth in the Report and Recommendation, the Court hereby ADOPTS United States Magistrate Judge Aloi's Report and Recommendation [ECF No. 57] and DENIES AS MOOT the pending motion to suppress [ECF No. 27].
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record and all appropriate agencies. DATED: October 27, 2021