United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
Lawrence R. Leonard United States Magistrate Judge
Shan Lavar Beamon was indicted by a grand jury on February 8,
2018, on three counts of false statement in violation of 18
U.S.C. § 1001(a)(2) (Counts 1, 2, 6); one count of felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) (Count 3); one count of distribution of heroin in
violation of 21 U.S.C. § 841(a) (Count 4); and one of
transfer of firearm to a felon in violation of 18 U.S.C.
§ 922(d) (Count 5). ECF No. 1. The Court was notified
that the Defendant wished to plead guilty and on July 3,
2018, and the District Judge issued an Order authorizing a
Magistrate Judge to conduct proceedings required by Federal
Rule of Criminal Procedure 11 incident to the making of a
plea. ECF No. 16. The matter was referred to the undersigned
who conducted the required plea colloquy pursuant to Rule 11
on July 16, 2018. See 28 U.S.C. § 636(b)(1);
United States v. Dees, 125 F.3d 261 (5th Cir. 1997).
plea hearing, the Defendant was placed under oath and pled
guilty to Counts 4, 5 and 6 of the Indictment. ECF No. 18.
During the colloquy, the Defendant presented a signed
Statement of Facts which he agreed was accurate, and to which
he did not object or take exception to. With respect to Count
5, the transfer of a firearm to a felon charge, the Defendant
admitted to participating in a sham transaction on September
8, 2016, in which he pretended to purchase a firearm and
heroin from an individual identified as "T.E.". ECF
No. 20. In actuality, the Defendant admitted that the day
before, on September 7, 2016, he offered T.E. $200.00 to
participate in a sham firearm and drug transaction for the
benefit of an unidentified customer who would observe the
transaction. Id. T.E. advised law enforcement that
on September 7, the Defendant delivered the firearm and the
heroin to T.E. in advance of the sham
transaction. Id At the time of the
transaction, T.E. was a convicted felon who had been
convicted of robbery and use of a firearm in the commission
of a felony in 2007 following his and Defendant's arrest
on these charges in 2006. Id. The undersigned accepted
the Defendant's plea and ordered that the plea agreement
be filed. Sentencing was scheduled for October 23, 2018.
after the hearing, Defendant sent a letter to the Court
casting doubt on the facts supporting Defendant's prior
plea of guilt to Count 5, the transfer of a firearm to a
felon charge. ECF No. 23. Specifically, Defendant wrote:
I have no problem honoring my plea agreement with the United
States Court system. Its [sic] just that this firearm charge
isn't sitting well with me when I know I did not possess
or transfer a firearm to anyone. [T.E.] has deceived the
court by saying I gave him a gun and he didn't know what
my intentions were. When indeed he did know and the gun was
in fact his that was the reason he was going to receive
$200.00 because he was selling the gun for that amount.
Id. at 1-2. The next day, the Defendant sent another
letter to the Court in which he advised that, after speaking
with his lawyer, he had a "better understanding now
about why I have to take the gun charge. I have signed a plea
agreement that I must honor." ECF No. 24 at 1.
these circumstances, the Court ordered a hearing to determine
whether Defendant's plea of guilty to Count 5 was
supported by an independent basis in fact containing each of
the essential elements of the offense, and whether Defendant
so admitted. At the hearing held on September 24, 2018, the
Defendant was placed under oath and the Court engaged in a
colloquy with him regarding his inconsistent positions of
guilt or innocence on Count 5. ECF No. 27. The Court reviewed
the colloquy in which it had engaged with Defendant at the
guilty plea hearing, including the discussion regarding the
Defendant's being questioned under oath and the
consequences of his providing untrue material responses, the
elements of the transfer of a firearm to a felon offense and
his understanding thereof, and his acknowledgment of the
accuracy of the Statement of Facts. Id. The Court
then asked Defendant to explain the circumstances behind the
September 8, 2016, transaction which was the basis for Count
THE COURT: Why don't you explain to the Court exactly
what happened during that transaction.
THE DEFENDANT: I provided [T.E.] with the heroin. I was
firearm. I did give [T.E.] the heroin. The firearm was
[T.E.'s] to begin with. He had no knowledge who I was
selling the firearm to, but knew I was selling a firearm.
THE COURT: Did you ever provide the firearm to [T.E.]? Did
you ever get it from him and then provide it back to him?
THE DEFENDANT: I never gave [T.E.] the gun, but being part of
that sham situation, I'm going to take full
responsibility for the whole situation.
Id. at 7:2-14.
accepting a defendant's plea of guilt, the Court shall
ensure a defendant's plea is made knowingly, voluntarily,
and intelligently, and that there exists an adequate factual
basis to support a defendant's plea of guilt.
See Fed. R. Crim. P. 11; United States v.
Hyde,520 U.S. 670, 672 (1997); United States v.
Pino, 2018 U.S. Dist. LEXIS 150894, *3-4 (E.D. Va.
2018). The District "Court has 'continuing authority
to determine whether there is an adequate factual basis to
support a plea of guilty' prior to sentencing."
Pino, 2018 U.S. Dist. LEXIS 150894 at *5-6 (vacating
Defendant's prior plea of guilt) (quoting United
States v. Blunt,540 F.Supp.2d 664, 665 (E.D. Va.
2008)). In the instant case, the Defendant has provided facts
inconsistent with the Statement of Facts to which he earlier
agreed. Defendant maintains he did not engage in the ...