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United States v. Shaver

United States District Court, N.D. West Virginia, Clarksburg

November 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL ANDREW CHRISTOPHER SHAVER, Defendant.

          REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE

          MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.

         This matter has been referred to the undersigned Magistrate Judge by the District Court for purposes of conducting proceedings pursuant to Federal Rule of Criminal Procedure 11 (ECF No. 14). Defendant, Michael Andrew Christopher Shaver, in person and by Federal Public Defender, Brian Kornbrath, appeared before me on November 22, 2016. The Government appeared by Assistant United States Attorney, David Perri. The Court determined that Defendant was prepared to enter a plea of "Guilty" to Count One of the Indictment.

         The Court proceeded with the Rule 11 proceeding by first placing Defendant under oath and inquiring into Defendant's competency. The Court determined Defendant was competent to proceed with the Rule 11 plea hearing and cautioned and examined Defendant under oath concerning all matters mentioned in Rule 11.

         The Court next inquired of Defendant concerning his understanding of his right to have an Article III Judge hear the entry of his guilty plea and his understanding of the difference between an Article III Judge and a Magistrate Judge. Defendant thereafter stated in open court that he voluntarily waived his right to have an Article III Judge hear his plea and voluntarily consented to the undersigned Magistrate Judge hearing his plea. Defendant tendered to the Court a written Waiver of Article III Judge and Consent to Enter Guilty Plea before Magistrate Judge. The waiver and consent wa s s i gne d by Def en dant, countersigned by Defendant's counsel, and concurred by the signature of the Assistant United States Attorney.

         Upon consideration of the sworn testimony of Defendant, as well as the representations of his counsel and the representations of the Government, the Court finds that the oral and written waiver of an Article III Judge and consent to enter a guilty plea before a Magistrate Judge was freely and voluntarily given. Additionally, the Court finds that the written waiver and consent was freely and voluntarily executed by Defendant Michael Andrew Christopher Shaver only after having had his rights fully explained to him and having a full understanding of those rights through consultation with his counsel, as well as through questioning by the Court. The Court ORDERED the written Waiver and Consent to Enter Guilty Plea before a Magistrate Judge filed and made part of the record.

         Thereafter, the parties represented to the Court that there is no plea agreement in this case. Defendant stated in open court that he fully understood he was pleading guilty to Count One of the original Indictment and that no other agreements had been made between himself and the Government.

         The undersigned then reviewed with Defendant Count One of the Indictment and the elements the Government would have to prove, charging him with receiving stolen firearms in violation of 18 U.S.C. §§ 922(j) and 942(a)(2). Subsequently, Defendant Michael Andrew Christopher Shaver pled GUILTY to the charge contained in Count One of the Indictment. However, before accepting Defendant's plea, the undersigned inquired of Defendant's understanding of the charges against him, inquired of Defendant's understanding of the consequences of him pleading guilty to the charges, and obtained the factual basis for Defendant's plea.

         The Court heard the testimony of Special Agent Steve Worthy of the Bureau of Alcohol, Tobacco, and Firearms. Agent Worthy testified as to his knowledge of the investigation of Special Agent Joseph Hicks, who was originally assigned to this case prior to being transferred, and to Defendant's possession of a stolen firearm. The theft of the firearm occurred on or about November 19, 2015, in Harrison County, West Virginia, and a nexus search revealed that the firearm was in interstate commerce. Neither counsel for Defendant nor Defendant had any questions for the witness. Defendant stated he heard, understood, and did not disagree with the testimony of the Government's witness. Additionally, Defendant provided an independent factual basis for the commission of the offense. The undersigned Magistrate Judge concludes the offense charged in Count One of the Indictment is supported by an independent basis in fact concerning each of the essential elements of such offense, and that an independent basis is provided by ATF Special Agent Steve Worthy's testimony.

         The undersigned then reviewed with Defendant the statutory penalties applicable to an individual adjudicated guilty of the felony charge contained in Count One of the Indictment and the impact of the sentencing guidelines on sentencing in general. From said review, the undersigned Magistrate Judge determined Defendant understood the nature of the charges pending against him and that the possible statutory maximum sentence which could be imposed upon his conviction or adjudication of guilty on Count One was not more than ten (10) years imprisonment. The undersigned further determined Defendant understood a fine of not more than $250, 000.00 could be imposed, both fine and imprisonment could be imposed, he could be subject to supervised release, and the Court would impose a special mandatory assessment of $100.00 for the felony conviction payable on or before the date of sentencing. Defendant also understood that his sentence could be increased if he had a prior firearm offense, violent felony conviction, or prior drug conviction. He also understood he might be required by the Court to pay the costs of his incarceration, supervision, and probation.

         The undersigned also informed Defendant whether he understood that by pleading guilty he was forfeiting other rights such as right to vote, right to serve on a jury, and the right to legally possess a firearm.

         Additionally, the undersigned asked Defendant whether he understood that if he were not a citizen of the United States, by pleading guilty to a felony charge he would be subject to deportation at the conclusion of any sentence; that he would be denied future entry into the United States; and that he would be denied citizenship if he ever applied for it. Defendant stated that he understood.

         The undersigned reviewed with Defendant all of the rights that are forfeited by tender of a plea of guilty. The undersigned advised Defendant of his right to plead not guilty and maintain that plea during a trial before a jury of his peers. The undersigned also informed Defendant of the right to be represented by counsel during trial, the right to confront and cross-examine witnesses, the right not to testify, the right to present evidence and subpoena witnesses and the right to have the Government prove its case beyond a reasonable doubt. The undersigned also noted that the jury's verdict must be unanimous. Defendant stated in open court that he understood all of these rights and understood that he would be giving up all of these rights by entering a plea of guilty. Defendant and his counsel stated that Defendant understood all of the consequences of pleading guilty. Defendant was also advised of his appellate rights.

         Defendant stated that the plea was not a result of any threat, coercion, or harassment and that the plea was not the result of any promises. Defendant stated there was nothing he had asked his lawyer to do that was not done Defendant further stated that his attorney had adequately represented him in this matter and that neither he nor his attorney had found an adequate defense to the charge contained in Count One of the Indictment.

         The undersigned Magistrate Judge informed Defendant that he would write the subject Report and Recommendation and a pre-sentence investigation report wo u l d be prepared by the probation officer attending the District Court. The undersigned advised the Defendant that the District Judge would adjudicate the Defendant guilty of the felony charged under Count One of the Indictment. Only after the District Court had an opportunity to review the pre-sentence investigation report, would the District ...


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