Opinion
Criminal No. 1:04CR12.
March 31, 2006
ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION THAT DEFENDANT'S GUILTY PLEA BE ACCEPTED AND SCHEDULING SENTENCING HEARING
On March 13, 2006, defendant, Dupre E. Phillips, appeared before United States Magistrate Judge John S. Kaull and moved this Court for permission to enter a plea of GUILTY to Count Nine of the Indictment. The defendant 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 the defendant's statements during the plea hearing and the testimony of West Virginia State Trooper Joseph Antolock, the magistrate judge found that the defendant was competent to enter a plea, that the plea was freely and voluntarily given, that the defendant was aware of the nature of the charges against him and the consequences of the charges against him and the consequences of his plea, and that a factual basis existed for the tendered plea. On March 15, 2006, the magistrate judge entered an order finding a factual basis for the plea and recommended that this Court accept the plea of guilty to Count Nine of the Indictment.
The magistrate judge also directed the parties to file any written objections to the report and recommendation within ten (10) days after service of the report and recommendation. 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 report and recommendation.
The parties did not file any objections. Accordingly, this Court finds that the magistrate judge's recommendation should be AFFIRMED and ACCEPTS the plea of guilty to Count Nine of the Indictment.
The Court ADJUGES the defendant GUILTY of the crime charged in Count Nine. Pursuant to Fed.R.Crim.P. 11(e) (2) and U.S.S.G. § 6B1.1(c), acceptance of the proposed plea agreement and stipulated addendum to the plea agreement, is DEFERRED until the Court has received and reviewed the presentence report prepared in this matter.
Pursuant to U.S.S.G. § 6A1 et seq., it is hereby ORDERED that:
1. The Probation Office undertake a presentence investigation of DUPRE E. PHILLIPS and prepare a presentence report for the Court;
2. The Government and the defendant are to provide their versions of the offense to the probation officer by April 13, 2006;
3. The presentence report is to be disclosed to the defendant, defense counsel, and the United States on or before May 15, 2006; however, the Probation Officer is directed not to disclose the sentencing recommendations made pursuant to Fed.R.Crim.P. 32(b)(6)(A);
4. Counsel shall file WRITTEN OBJECTIONS to the presentence report and may file a SENTENCING MEMORANDUM that evaluates sentencing factors the parties believe to be relevant under 18 U.S.C. § 3553(a) (including the sentencing range under the advisory Guidelines) and explains any proposed sentence, on or before May 25, 2006;
5. The Office of Probation shall submit to the Court the presentence report with addendum on or before June 5, 2006; and
6. Sentencing is set for June 14, 2006 at 12:15 p.m.
7. The Court remanded the defendant to the custody of the United States Marshals.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record, the defendant and all appropriate agencies.