United States District Court, N.D. West Virginia, Clarksburg
KEELEY
JUDGE.
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.
25). Defendant, William Sheridan Colbert, in person and by
counsel, Elizabeth D. Gross, appeared before me on September
11, 2017. The Government appeared by Assistant United States
Attorney, Traci M. Cook. 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 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 was signed by
Defendant, 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
William Sheridan Colbert 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 Court determined that Defendant's plea was pursuant
to a written plea agreement, and asked the Government to
tender the original to the Court. The Court asked counsel for
the Government if the agreement was the sole agreement
offered to Defendant. The Government responded that it was,
and counsel for Defendant confirmed the same. The Court asked
counsel for the Government to summarize the written plea
agreement. Counsel for Defendant and Defendant stated that
the agreement as summarized by counsel for the Government was
correct and complied with their understanding of the
agreement. The undersigned further inquired of Defendant
regarding his understanding of the written plea agreement.
Defendant stated he understood the terms of the written plea
agreement and also stated that it contained the whole of his
agreement with the Government and no promises or
representations were made to him by the Government other than
those terms contained in the written plea agreement. The
Court ORDERED the written plea agreement
filed and made part of the record.
The
undersigned then reviewed with Defendant Count One of the
Indictment and the elements the Government would have to
prove, charging him with Escape in violation of Title 18
U.S.C. § 751(a). Subsequently, Defendant William
Sheridan Colbert 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
Government proffered a factual basis for the plea. Defendant
stated he heard, understood, and did not disagree with the
Government's proffer. Additionally, Defendant provided a
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.
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 imprisonment for a
term not more than five (5) years. 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 would be subject to a period of at least three
(3) years of supervised release, and the Court would impose a
special mandatory assessment of $100.00 for the felony
convocation 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 also reviewed with Defendant his waiver of
appellate and collateral attack rights. Defendant understood
that he was waiving his right to appeal his conviction and
sentence to the Fourth Circuit Court of Appeals, including
those grounds set forth in 18 U.S.C. § 3742 if sentenced
six (6) months or less and ordered to be served consecutively
to the sentence imposed by the United States District Court
for the Northern District of West Virginia, in case number
1:06CR94-01. Defendant further understood that under his plea
agreement, he was waiving his right to challenge his
conviction and sentence in any post-conviction proceeding,
including any proceeding under 28 U.S.C. § 2255, if
sentenced for six (6) months or less and ordered to be served
consecutively to the sentence imposed by the United States
District Court for the Northern District of West Virginia, in
case number 1:06CR94-01. Defendant understood, however, that
he was reserving the right to raise claims of ineffective
assistance of counsel or prosecutorial misconduct that he
learned about after the plea hearing and agreed that he was
unaware of any ineffective assistance of counsel or
prosecutorial misconduct in his case at this time. From the
foregoing, the undersigned determined that Defendant
understood his appellate rights and knowingly gave up those
rights pursuant to the conditions contained in the written
plea agreement.
The
undersigned Magistrate Judge further examined Defendant
relative to his knowledgeable and voluntary execution of the
written plea bargain agreement, and determined the entry into
said written plea bargain ...