Free Magistrate Judges Findings & Recommendations - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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United States of America, Plaintiff, v. Rogelio Vincente Hernandez-Ruiz, Defendant.

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CR 04-872-01-PHX-DGC FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE UPON A PLEA OF GUILTY AND ORDER

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TO: THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT
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JUDGE.
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Upon Defendant's request to enter a plea of guilty pursuant to Rule 11 of the Federal
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Rules of Criminal Procedure, this matter came on for hearing before U.S. Magistrate Judge
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Lawrence O. Anderson on December 1, 2005 with the written consents of the defendant,
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counsel for the defendant, and counsel for the United States of America.
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In consideration of that hearing and the statements made by the defendant under
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oath on the record and in the presence of counsel, and the remarks of the Assistant United
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States Attorney and of counsel for defendant,
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(A) I FIND as follows:
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(1) that defendant understands the nature of the charge against him to which the plea
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is offered;
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(2) that defendant understands his right to trial by jury, to persist in his plea of not
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guilty, to the assistance of counsel at trial, to confront and cross-examine adverse
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witnesses, and his right against compelled self-incrimination;
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(3) that defendant understands what the maximum possible sentence is, including the effect of the supervised release term, and defendant understands that the sentencing guidelines are advisory only and that the Court may depart from those guidelines under some circumstances; (4) that the plea of guilty by the defendant has been knowingly and voluntarily made and is not the result of force or threats or of promises apart from the plea agreement between the parties; (5) that defendant is competent to plead guilty; (6) that the defendant understands that his answers may later be used against him in a prosecution for perjury or false statement; (7) that the Defendant understands that by pleading guilty he waives the right to a jury trial. (8) The Defendant understands the terms of any plea agreement provision waiving the right to appeal or to collaterally attack the sentence; and (9) that there is a factual basis for the defendant's plea; and further, (B) I RECOMMEND that the plea of Guilty to Count 3 of the Indictment be accepted subject to the Court's acceptance of the plea agreement which shall remain lodged with the Court pending Judge Campbell's decision whether to accept or reject the plea agreement after review of the presentence report. ORDER IT IS ORDERED that any objection to the guilty plea proceedings and any request(s) for supplementation of those proceedings be made by the parties in writing and shall be specific as to the objection(s) or request(s) made. All objections or requests for supplementation shall be filed within ten (10) days of the date of service of a copy of these findings unless extended by an Order of the assigned district judge.

IT IS FURTHER ORDERED that all letters, documents or other things Defendant
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would like the sentencing judge to read and consider before pronouncing sentence (including the translation of any documents from Spanish to English if applicable) must be filed or lodged, at least, six (6) business days prior to the sentencing date or they may be deemed untimely by the sentencing judge and not considered by him/her. IT IS FURTHER ORDERED that any motions for upward departure, downward departure and sentencing memoranda must be filed, at least, six (6) business days prior to the sentencing date. Responses are due three (3) business days prior to the sentencing date. Any motion to continue shall be filed, at least, three (3) business days prior to the sentencing date. DATED this 1st day of December, 2005.

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