United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
Charleston, on April 19, 2018, came the defendant Kimberly
McCoy, in person and by counsel, David R. Bungard, Assistant
Federal Public Defender, and came the United States by C.
Haley Bunn, Assistant United States Attorney, for the purpose
of considering the defendant's plea of guilty to the
Amended Information charging her with conspiracy to acquire
and obtain Suboxone by misrepresentation, fraud, forgery,
deception, and subterfuge, in violation of 21 United States
Code, Section 846. Linsey Burns, Probation Officer, appeared
on behalf of the United States Probation Department.
court inquired of the defendant, addressing her personally
and by counsel, to determine the competency of the defendant
to proceed. The court found the defendant competent.
Assistant United States Attorney then offered for the
court's consideration and summarized the entirety of a
written plea agreement signed by both the defendant and her
counsel, which signatures the defendant and her counsel
acknowledged in court.
court informed the defendant of the maximum penalties to
which she will be exposed by virtue of her plea of guilty and
defendant acknowledged her understanding of the same.
court next inquired as to the defendant's plea and the
defendant responded that she intended to plead guilty. The
court explained the range of penalties to which the defendant
would be exposed by virtue of her guilty plea. The court also
explained the statute under which this action is prosecuted
and the elements which the United States would have had to
prove, beyond a reasonable doubt, had the matter been tried.
The Assistant United States Attorney then stated the factual
basis establishing that the defendant committed the offense
to which she was pleading guilty. The defendant admitted that
the factual basis as stated was substantially true.
court informed the defendant of her right to be prosecuted by
indictment pursuant to Rule 7 of the Federal Rules of
Criminal Procedure. Having been informed of this right, the
defendant signed a waiver of her right to prosecution by
indictment, which signature she acknowledged in open court.
court further informed the defendant, pursuant to the
requirements of Rule 11 of the Federal Rules of Criminal
Procedure, of the constitutional and other rights she would
waive by pleading guilty to the Amended Information. The
court then determined that the defendant understood those
rights. The court advised the defendant that she could not
withdraw her plea if she was dissatisfied with the sentence
court inquired of the defendant personally as to whether any
threats or promises had been made to her to induce her to
plead, whether any predictions were made regarding the
sentence she might receive, and whether she had any second
thoughts about entering a plea of guilty, to which questions
the defendant responded in the negative.
upon the defendant's plea of guilty, as well as her
factual admission of guilt, the court found that there
existed a factual and legal basis for the defendant's
plea of guilty. Based upon the United States' proffer of
evidence against the defendant, the court found that there
also existed an independent factual basis for the
defendant's plea of guilty. The court further found that
the defendant tendered her plea of guilty voluntarily and
with a full understanding and awareness of the constitutional
and other rights which she gives up by pleading guilty, and
with an awareness of what the United States would have to
prove against her if the case went to trial. The court
further found that the defendant had an appreciation of the
consequences of her plea and accepted the defendant's
plea of guilty.
to Sentencing Guideline § 6B1.1(c), the court deferred
an adjudication of guilt pending receipt of the presentence
investigation report. Accordingly, the court adjudges and the
defendant now stands provisionally guilty of the Amended
court scheduled the disposition of this matter for August 29,
2018, at 10:30 a.m., in Charleston. The Probation Department
is directed to conduct a presentence investigation in this
matter and to provide a report to this court. Unless
otherwise directed by this court, the probation officer is
not to disclose the officer's sentencing recommendation
to anyone except the court.
reasons stated on the record, the court found by clear and
convincing evidence that defendant was not a flight risk or a
danger to the community. Accordingly, defendant was released
on a $10, 000.00 unsecured bond subject to all the standard
conditions of release.
Clerk is directed to send a copy of this Memorandum Opinion
and Order to counsel of record, the United States Marshal for
the Southern District of West ...