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.
688). Defendant, Ariel Blosser, in person and by counsel,
Thomas Zimarowski, appeared before me on November 1, 2017.
The Government appeared by Assistant United States Attorney,
Zelda Wesley. The Court determined that Defendant was
prepared to enter a plea of "Guilty" to Count 20 of
the Superseding 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 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.
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
Ariel Blosser 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
undersigned then reviewed with Defendant Count 20 of the
Superseding Indictment and the elements the Government would
have to prove, charging her with Distribution of Oxycodone in
violation of 21 U.S.C. 841(a)(1). Subsequently, Defendant
Ariel Blosser pled GUILTY to the charge
contained in Count 20 of the Superseding 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.
Government proffered a factual basis for the plea explaining
the investigation of drug activity leading to the instant
charges, and the Defendant's involvement in same.
counsel for Defendant nor Defendant had any questions for the
witness. Defendant stated she 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 20 of the Superseding Indictment is
supported by an independent basis in fact concerning each of
the essential elements of such offense, and that independent
undersigned then reviewed with Defendant the statutory
penalties applicable to an individual adjudicated guilty of
the felony charge contained in Count 20 of the Superseding
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 20 was not more
than twenty (20) years. The undersigned further determined
Defendant understood a fine of not more than $1, 000, 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 she had a prior firearm offense, violent felony
conviction, or prior drug conviction. She also understood she
might be required by the Court to pay the costs of her
incarceration, supervision, and probation.
undersigned also informed Defendant whether she understood
that by pleading guilty she 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
in her case at this time. From the foregoing, the undersigned
determined that Defendant understood her appellate rights and
knowingly gave up those rights pursuant to the conditions
contained in the written plea agreement.
undersigned Magistrate Judge further examined Defendant
relative to her knowledgeable and voluntary execution of the
written plea bargain agreement, and determined the entry into
said written plea bargain ...