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United States v. Biazon

United States District Court, W.D. Virginia, Charlottesville Division

February 28, 2019

UNITED STATES OF AMERICA,
v.
MICA GRACE BIAZON, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         This case was referred to the undersigned magistrate judge for the purpose of conducting a felony guilty plea hearing. This report and recommendation is submitted to the presiding district judge under 28 U.S.C. § 636(b)(3). The defendant waived her right to plead before a United States District Judge and consented to proceed before the undersigned magistrate judge.

         On February 28, 2019, the defendant appeared with counsel before the magistrate judge, who personally addressed the defendant and admonished her pursuant to Rule 11(b)(1)(A)-(O) of the Federal Rules of Criminal Procedure. Discussing the district judge's role of determining a sentence, the Court explained to the defendant that the sentencing range under the Sentencing Guidelines, which are advisory, not mandatory, would not be determined until a presentence report is written and a sentencing hearing held, that the district judge had the authority to impose a sentence more or less severe than called for in the guidelines, and that the sentence the defendant receives may be different than any estimate given by her attorney. The Court also admonished the defendant that if the district judge does not accept a recommendation set forth in the plea agreement, the defendant will still be bound by her plea and will have no right to withdraw it. The defendant stated that she understood the Court's admonishments. The attorney for the Government stated the essential terms of the plea agreement, which has been filed with the Court, and the defendant and her counsel agreed that those in fact were the terms of the agreement. The defendant further stated that she had read the plea agreement, had reviewed it with her counsel, and understood it. Accordingly, the undersigned finds that the defendant understands the charge to which she is pleading guilty and that her plea was knowingly made. Fed. R. Crim. P. 11(b)(1).

         The Court also addressed the defendant personally as to her competency to plead and the voluntariness of her plea, specifically whether it resulted from force, threats, or promises other than promises made in a plea agreement or in open court. Fed. R. Crim. P. 11(b)(2). Based on this discussion, the undersigned finds the defendant to be sufficiently competent to enter a plea, that she desired to plead guilty, and that her plea was voluntary.

         The government presented a statement of facts, which has been filed with the Court, regarding the offense to which the defendant pleaded guilty. The defendant testified that she read the statement of facts and discussed it with her attorney. She agreed that the statement of facts was accurate and did not contest those facts. No additional facts beyond those contained in the written statement of facts were presented at the guilty plea hearing. The statement of facts presents the following:

         On two occasions, on March 8 and 22, 2018, Damian Milliner provided the defendant money to purchase firearms and instructed her to purchase two firearms. On each of those same dates, the defendant purchased two firearms, four in total, and indicated on Form 4473 that she was the actual buyer of the firearms and that they were not intended for anyone else. After each purchase, Biazon gave the firearms to Milliner.

         The undersigned finds that these facts provide a sufficient basis for the defendant's guilty plea to the charge of making a false statement in relation to the purchase of a firearm. Fed. R. Crim. P. 11(b)(3).

         The defendant pleaded guilty to Count One of the Indictment, making a false statement in relation to the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). The magistrate judge finds the following:

1. The defendant's guilty plea was taken by the undersigned subject to the acceptance of the plea and sentencing by the assigned district judge and after the defendant consulted with an attorney and executed oral and written waivers;
2. The defendant fully understands the nature of the charge and relevant penalties;
3. The defendant fully understands the terms of the plea agreement;
4. The defendant fully understands her constitutional and statutory rights and wishes to waive those rights;
5. The defendant's guilty plea was freely and voluntarily tendered;
6. The defendant is sufficiently competent to enter a guilty plea; and 7. An adequate factual basis exists to ...

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