United States District Court, N.D. West Virginia
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 (Dkt. No.
40). Defendant, Jesse Nelson Yoho, in person and by counsel,
Charles Berry, appeared before me on November 21, 2017. The
Government appeared by Assistant United States Attorney,
Sarah Wagner. The Court determined that Defendant was
prepared to enter a plea of "Guilty" to Count Four
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 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
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
Jesse Nelson Yoho 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.
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 inquired if the
agreement was the sole agreement offered to Defendant.
Counsel for Defendant responded that it was the second plea
agreement offered to defendant, and was more favorable to
Defendant than the first plea agreement offered. 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
undersigned then reviewed with Defendant Count Four of the
Indictment and the elements the Government would have to
prove, charging him with Possession of Pseudoephedrine to be
Used in Manufacture of Methamphetamine in violation of 21
U.S.C. § 841(c)(2). Subsequently, Defendant Jesse Nelson
Yoho pled GUILTY to the charge contained in
Count Four 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.
Court heard the testimony of Lieutenant Doug Yost of the
Fairmont Police Department. Lieutenant Yost testified as to
his investigation of a report of manufacture of
methamphetamine leading to the indictment in this case and
Defendant's alleged involvement.
counsel cross examined the witness. Defendant did not
question the witness when given the opportunity to do so.
Defendant stated he 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 Four 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 Lieutenant Yost's
undersigned then reviewed with Defendant the statutory
penalties applicable to an individual adjudicated guilty of
the felony charge contained in Count Four 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 Four was not more than 20
years. The undersigned further determined Defendant
understood a fine of not more than 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
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.
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 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.
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 on any ground
whatsoever, including those grounds set forth in 18 U.S.C.
§ 3742. 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.
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.
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 ...