Opinion
21-14031-CR-CANN/MAYNARD
10-29-2021
UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS ANTONIO ZAMUDIO-HERNANDEZ, 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 October 29, 2021. The hearing was convened via video teleconference on the Zoom platform. At the hearing's outset, I advised the Defendant of his right to appear in person for the proceeding. The Defendant acknowledged that he understands that right and, after consultation with counsel, agreed to waive that right and consented to have the hearing conducted through video teleconference. Defendant also acknowledged his signature on a written Consent to Appear by Video Teleconference Form that has been filed in the record in this case. (DE 39). Having discussed the matter with the Defendant, I find that his waiver of in person appearance and consent to proceed through video teleconference is knowing and voluntary. I also find, pursuant to the CARES Act, H.R. 788, and the Court's Administrative Orders In re: Coronavirus Public Emergency, that the plea cannot be further delayed without serious harm to the interests of justice.
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 34). I reviewed that Plea Agreement on the record and had the Defendant acknowledge that he signed the Plea Agreement. The Defendant pleaded guilty to Counts One and Two of the Indictment. Count One charges the Defendant with production of visual depictions involving the sexual exploitation of minors, in violation of Title 18, United States Code, Section 2251(a) and (e). Count Two charges the Defendant with possession of visual depictions involving the sexual exploitation of minors, in violation of Title 18, United States Code, Section 2252(a)(4)(B) and (b)(2).
5. I reviewed with the Defendant the statutory mandatory minimum penalties and maximum penalties applicable to Counts One and Two. The Defendant acknowledged that he understood the statutory penalties that apply in his case.
6. The Plea Agreement contains a forfeiture provision, which was reviewed with the Defendant. The Defendant acknowledged that he is voluntarily abandoning to law enforcement all right, title, and interest in the property described in the Plea Agreement.
7. The Plea Agreement also contains a provision regarding restitution, which was reviewed with the Defendant. The Defendant acknowledged his understanding that restitution is mandatory.
8. The Plea Agreement contains a provision regarding sex offender registration. Defendant acknowledged his understanding that by pleading guilty he will be required to register as a sex offender and will be subject to federal and state sex offender registration requirements which may apply throughout the Defendant's life.
9. The parties submitted a written Factual Proffer which was signed by counsel for the Government, counsel for the Defendant, and the Defendant. (DE 35). The Defendant acknowledged that he signed the Factual Proffer, understands it, and has had the opportunity to fully discuss it with his attorney. The Defendant agreed that the Factual Proffer is true and correct, and accurately sets forth the facts in his case as he understands them to be. I have reviewed the Factual Proffer in its entirety and find that it sets forth each of the essential elements of the crimes to which the Defendant is pleading guilty.
10. Based on the foregoing and the plea colloquy that I conducted, I find that the Defendant enters his plea of guilty to Counts One and Two of the Indictment freely and voluntarily. I accept his guilty plea and recommend to the District Court that it adjudicate him guilty of Counts One and Two as charged in the Indictment.
11. 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 Counts One and Two of the Indictment be accepted; that the Defendant be adjudicated guilty of the offenses 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 Aileen M. Cannon, 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.