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.
18). Defendant, Rocmond Lewis, Sr., in person and by Federal
Public Defender, Brian Kornbrath, appeared before me on
December 14, 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 One (1) 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
Rocmond Lewis, Sr. 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 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
undersigned then reviewed with Defendant Count One (1) of the
Indictment and the elements the Government would have to
prove, charging him with Unlawful Possession of a Firearm in
violation of 18 U.S.C. 922(g)(1). Subsequently, Defendant
Rocmond Lewis, Sr. pled GUILTY to the charge
contained in Count One (1) 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.
Government proffered a factual basis for the plea explaining
what the evidence would show if this case went to trial,
pertaining to the discovery of Defendant's possession of
firearms, his prior felony conviction, and the firearms'
travel in interstate commerce.
counsel for Defendant nor Defendant disputed the proffer when
given the opportunity to do so. 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 (1) of the
Indictment is supported by an independent basis in fact
concerning each of the essential elements of such offense.
undersigned then reviewed with Defendant the statutory
penalties applicable to an individual adjudicated guilty of
the felony charge contained in Count One (1) 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 (1) 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 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 ...