United States District Court, N.D. West Virginia, Clarksburg
REPORT AND RECOMMENDATION CONCERNING PLEA OF GUILTY
IN FELONY CASE
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
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.
431). Defendant, Bobbie Jo Phillips, in person and by
counsel, Ailynn Orteza, appeared before me on September 7,
2017. The Government appeared by Assistant United States
Attorney, Zelda E. Wesley. The Court determined that
Defendant was prepared to enter a plea of "Guilty"
to Count Ninety-Three of the Indictment.
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.
Court next inquired of Defendant concerning her understanding
of her right to have an Article III Judge hear the entry of
her guilty plea and her understanding of the difference
between an Article III Judge and a Magistrate Judge.
Defendant thereafter stated in open court that she
voluntarily waived her right to have an Article III Judge
hear her plea and voluntarily consented to the undersigned
Magistrate Judge hearing her 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.
consideration of the sworn testimony of Defendant, as well as
the representations of her 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
Bobbie Jo Phillips only after having had her rights fully
explained to her and having a full understanding of those
rights through consultation with her 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.
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 her understanding of the written plea agreement.
Defendant stated she understood the terms of the written plea
agreement and also stated that it contained the whole of her
agreement with the Government and no promises or
representations were made to her 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.
undersigned then reviewed with Defendant Count Ninety-Three
of the Indictment and the elements the Government would have
to prove, charging her with Unlawful Use of Communication
Facility in violation of Title 21, United State Code, Section
843(b). Subsequently, Defendant Bobbie Jo Phillips pled
GUILTY to the charge contained in Count
Ninety-Three of the Indictment. However, before accepting
Defendant's plea, the undersigned inquired of
Defendant's understanding of the charges against her,
inquired of Defendant's understanding of the consequences
of her pleading guilty to the charges, and obtained the
factual basis for Defendant's plea.
Court heard the testimony of, Officer Mark Trump with the
Morgantown Police Department. Officer Mark Trump testified
that while conducting a drug investigation, Officer Trump
received a warrant to intercept calls coming to and from a
target telephone operated by an individual by the name of
Terry Thomas. Officer Trump further testified that on March
8, 2017, officers monitored a number of phone calls between
Terry Thomas and Defendant, where Defendant arranged a drug
purchase of oxycodone pills and crack cocaine. Officer Trump
confirmed that the drug transaction Defendant arranged did in
fact take place.
counsel for Defendant nor Defendant had any questions for the
witness. Defendant stated she heard, understood, and did not
disagree with the testimony of the Government's witness.
Additionally, Defendant provided a factual basis for the
commission of the offense. The undersigned Magistrate Judge
concludes the offense charged in Count Ninety-Three of the
Indictment is supported by an independent basis in fact
concerning each of the essential elements of such offense,
and that independent basis is provided by Detective Mark
undersigned then reviewed with Defendant the statutory
penalties applicable to an individual adjudicated guilty of
the felony charge contained in Count Ninety-Three 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 her and that the possible
statutory maximum sentence which could be imposed upon her
conviction or adjudication of guilty on Count Ninety-Three
was a term of imprisonment of not more than four(4) 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, she 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 conviction payable on or
before the date of sentencing. Defendant also understood that
her sentence could be increased if he had a prior firearm
offense, violent felony conviction, or prior drug conviction.
She also understood he might be required by the Court to pay
the costs of her incarceration, supervision, and probation.
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.
the undersigned asked Defendant whether she understood that
if she were not a citizen of the United States, by pleading
guilty to a felony charge she would be subject to deportation
at the conclusion of any sentence; that she would be denied
future entry into the United States; and that she would be
denied citizenship if she ever applied for it. Defendant
stated that she understood.
undersigned also reviewed with Defendant her waiver of
appellate and collateral attack rights. Defendant understood
that she was waiving her right to appeal her conviction and
sentence to the Fourth Circuit Court of Appeals on any ground
whatsoever, including those grounds set forth in 18 U.S.C.
§ 3742. Defendant further understood that under her plea
agreement, she was waiving her right to challenge her
conviction and sentence in any post-conviction proceeding,
including any proceeding under 28 U.S.C. § 2255.
Defendant understood, however, that she was reserving the
right to raise claims of ineffective assistance of counsel or
prosecutorial misconduct that she learned about after the
plea hearing and agreed that she was unaware of any
ineffective assistance of counsel or prosecutorial misconduct