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United States v. Rojas-Ortega

United States District Court, Fourth Circuit

November 6, 2013

UNITED STATES OF AMERICA
v.
WUILIAN ADOLFO ROJAS-ORTEGA Defendant.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

DAVID J. NOVAK, Magistrate Judge.

This matter is before the court pursuant toTitle 28 U.S.C. § 636(b)(1)(B) and (b)(3) upon the Defendant's request to enter a plea ofguilty pursuant to Fed. R. Crim. P. 11 and a written plea agreement that has been entered into by the United States and the Defendant. The matter was presented to the court upon the written consent of the Defendant and counsel for the Defendant to proceed before a United States Magistrate Judge, said consent including the Defendant's understanding that he consented to not only havingthe Magistrate Judge conductthe hearing and enter any order of forfeiture, ifapplicable, but also to having the Magistrate Judge make necessary findings andaccepting any guilty pleaas may be entered that could not be withdrawn except for fair and just reason.

The Court accepted the Defendant's waiver of his rightto proceed by Indictment after specific inquiry was made of the Defendant as tohis understanding of the right to require prosecution by indictment. The Defendant pled guilty to the Indictment in open court and pursuant to a Rule 11 inquiry. Upon consideration of the responses and statements made bythe Defendant under oath, on the record, and based uponthe written plea agreement andstatement of facts presented, the court makes the following findings:

1. That the Defendant is competent to enter a plea of guilty;
2. That the Defendant understands the nature of the charge against him to which his plea is offered;
3. That the Defendant understands what the maximum possible penalties are upon conviction of the offense charged, including any mandatoryminimum periodsof confinement, the effect ofany required term of supervised release, the loss of various civil rights (if applicable, including the right to vote, the right to hold public office, the right to own and possess a firearm), the possibility of adverse immigration consequences (if applicable), the required imposition of a special assessment, forfeiture of real and/or personal property (if applicable), and restitution (if applicable);
4. That the sentencing court hasjurisdiction and authorityto imposeany sentence within the statutory maximums provided, but that the court will determine the defendant's actual sentence in accordance with 18 U.S.C. § 3553(a) and that the court, after considering the factors set forth in 18 U.S.C. § 3553(a), may impose a sentence above or below the advisory sentencing range, subject only to reviewby higher courts for reasonableness;
5. That the Defendant understands his right to persist in a plea of not guilty and require that the matter proceed to trial withall the rights and privileges attending a trial, including, but not limited to: the right to effective assistance of counsel; the rightto use the power and processes of the court to compel the production of relevant evidence on the Defendant's behalf; the right to confront and cross-examine adverse witnesses; the right to present relevant evidence; the right to remain silent; and the right to trial by jury;
6. That the Defendant understands that he is waiving any right to appeal whatever sentence is imposed by pleading guilty, even if the sentence is erroneous, as long as said sentence does not exceed the total statutory penalties provided;
7. That the Defendant understands all provisions of the written plea agreement which was reviewed in essential part with the Defendantduring the proceeding;
8. That the plea of guiltyentered by the Defendant was knowingly and voluntarily entered and is not the result of force or intimidation of any kind; nor is it the result of any promises other than the representations set forth in the plea agreement; and
9. Thatthe plea of guilty entered bythe Defendant was knowingly and voluntarily made with full knowledge of the consequences and with an independent basis in fact to support said plea.

Accordingly, the court accepted the Defendant's plea of guilty to the Indictment and entered judgment ofguilt on the subject charge. It is therefore the recommendation of this court that its findings, including the acceptance of the Defendant's plea of guilt and resulting judgment of guilt, be adopted.

Letthe Clerk forward a copy of this report and recommendation to the Honorable Robert E. Payne and to counsel of record.

It is so Ordered.


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