Opinion
21-14041-CR-MARTINEZ/MAYNARD
02-02-2022
UNITED STATES OF AMERICA, Plaintiff, v. PASCUAL PEREZ-MORENO, aka PASCUAL MORENO-PEREZ, Defendant.
REPORT AND RECOMMENDATION ON CHANGE OF PLEA
SHANIEK M. MAYNARD, UNITED STATES MAGISTRATE JUDGE
THIS CAUSE comes before me upon an Order of Reference. Having conducted a Change of Plea Hearing, I recommend to the District Court as follows:
1. I convened a hearing to permit the Defendant to change his plea in this criminal case on January 26, 2022. The hearing was interpreted to the Defendant by the Court's Spanish language interpreter. The Defendant indicated to me that he was able to understand what was being said to him throughout the hearing.
2. I advised the Defendant of his right to have the District Judge assigned to this case conduct this proceeding. I advised that I was conducting the Change of Plea Hearing at the request of the Defendant, the Defendant's attorney, and the Assistant United States Attorney assigned to this case. I advised that the District Judge assigned to this case will be the sentencing judge, will make all findings and rulings concerning the Defendant's sentence, and will schedule and conduct the Sentencing Hearing. I advised the Defendant that he did not have to permit me to conduct this hearing but could request a United States District Judge to conduct the Change of Plea Hearing instead. The Defendant, the Defendant's attorney, and the Assistant United States Attorney assigned to the case all agreed on the record and consented to have a United States Magistrate Judge conduct the Change of Plea Hearing.
3. I conducted the plea colloquy in accordance with the outline set forth in the Bench Book for District Judges.
4. There is a written Plea Agreement which has been entered into by the parties in this case. DE 13. Defendant indicated to me that the Plea Agreement was interpreted to him by a Spanish language interpreter, he understands the Plea Agreement and he agrees to its contents. I reviewed the Plea Agreement on the record and had the Defendant acknowledge that he signed the Plea Agreement.
5. The Defendant pleaded guilty to the Indictment, which charges him with illegal reentry of a removed alien, in violation of Title 8, United States Code, Section 1326(a).
The Government indicated that although the Indictment also references Title 8, United States Code, Section 1326(b)(2), it is taking the position that 1326(b)(2) does not apply.
6. I reviewed with the Defendant the applicable statutory maximum penalties. The Defendant acknowledged that he understands the statutory penalties that apply in his case.
7. The parties submitted a written Acknowledgement of Offense Elements and Stipulation as to Factual Basis for Guilty Plea (“Stipulation”) which was signed by counsel for the Government, counsel for the Defendant, and the Defendant. DE 14. The Defendant indicated to me that the Stipulation was interpreted to him by a Spanish language interpreter. He acknowledged that he signed the Stipulation, understands it, and has had the opportunity to fully discuss it with his attorney. The Defendant agreed that the Stipulation is true and correct, and accurately sets forth the facts in his case as he understands them to be. The Stipulation was read into the record. I find that it sets forth each of the essential elements of the crime to which the Defendant is pleading guilty.
8. Based on the foregoing and the plea colloquy that I conducted, I find that the Defendant enters his plea of guilty to the sole count of the Indictment freely and voluntarily. I accept his guilty plea and recommend to the District Court that it adjudicate him guilty as charged.
9. The United States Probation Office will conduct a pre-sentence investigation and will issue a report for sentencing purposes.
ACCORDINGLY, this Court recommends to the District Court that Defendant's plea of guilty to the sole count of the Indictment be accepted; that the Defendant be adjudicated guilty of the offense to which he pleads guilty; and that a sentencing hearing be conducted for final disposition of this case.
The parties shall have fourteen (14) days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida. Pursuant to Federal Rule of Criminal Procedure 59(b)(2), failure to file a timely objection to this Report and Recommendation waives the party's right to review, and it bars the party from attacking on appeal any legal rulings or fact findings contained herein.
DONE AND SUBMITTED.