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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Anthony Lee Koester, Defendant.

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No.

CR 06-1160-PHX-MHM CR 02-0230-PHX-MHM CR 02-1216-PHX-MHM

FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE UPON A PLEA OF GUILTY AND ADMISSION AND ORDER

TO THE HONORABLE MARY H. MURGUIA, U.S. DISTRICT JUDGE: Upon Defendant's request to enter a plea of guilty pursuant to Rule 11 of the Federal Rules of Criminal Procedure, this matter came on for hearing before U.S. Magistrate Judge David K. Duncan on March 1, 2007 with the written consents of the defendant, counsel for the defendant, and counsel for the United States of America. The hearing on defendant's plea of guilty was in full compliance with Rule 11, Federal Rules of Criminal Procedure, before the Magistrate Judge in open court and on the record. In consideration of that hearing and the statements made by the defendant under oath on the record and in the presence of counsel, and the remarks of the Assistant United States Attorney and of counsel for defendant, I FIND as follows: (1) that defendant understands the nature of the charge against him to which the plea is offered and the elements of the offense(s) to which he is pleading guilty;

Case 2:02-cr-00230-MHM

Document 58

Filed 03/02/2007

Page 1 of 4

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(2) that defendant understands his right to trial by jury, to persist in his plea of not guilty, to the assistance of counsel at trial, to confront and cross-examine adverse witnesses, and his right against compelled self-incrimination; (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, not mandatory, and that the Court may sentence outside those guidelines if defendant is convicted at trial; (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 defendant understands that by pleading guilty he waives the right to a jury trial; (8) that the defendant understands the terms of any plea agreement provision waiving the right to appeal or to collaterally attack the sentence, and has knowingly, intelligently and voluntarily waived those rights; and (9) that there is a factual basis for the defendant's plea; and further, Upon defendant's request to enter an admission of guilt to the allegations that he violated conditions of supervised release, this matter was referred to the Magistrate Judge by the District Court, with the consent of the defendant, counsel for the defendant and counsel for the United States. Therefore, the matter came on for a hearing on defendant's admission to the Violation Petitions before the Magistrate Judge, in open court and on the record. In consideration of that hearing and the admission made by the defendant under oath on the record and in the presence of counsel, and the remarks of the Assistant United States Attorney,
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I FIND AS FOLLOWS: (1) (2) that defendant is competent to admit the violations; that defendant understands his right to an evidentiary hearing and has knowingly

and voluntarily waived his right to that hearing; (3) that defendant understands the sentencing options the Court may impose as a

result of his admissions; (4) (5) that defendant understands that nature of the allegations against him; that defendant has admitted he committed violations of supervised release as

alleged in the petitions; (6) (7) that there is a factual basis for defendant's admissions; and that the admissions by defendant have been knowingly and voluntarily made and

are not the result of force or threats or of promises apart from the plea agreement between the parties. I RECOMMEND that the Court accept the defendant's plea of guilty and admission to violations of supervised release. IT IS ORDERED that any objection to the guilty plea and/or admission to a violation of supervised release proceedings and any request for supplementation of those proceedings be made by the parties in writing and shall be specific as to the objection or request 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 any letters, documents, or other matters Defendant would like the sentencing judge to consider before sentencing (including the English translation of any writings not in English) must be filed or lodged at least seven (7) business days prior to the sentencing date or they may be deemed untimely by the sentencing judge and not considered. IT IS FURTHER ORDERED that any motions for upward or downward departures or any sentencing memoranda must be filed at least seven (7) business days prior to the sentencing
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date. Responses are due three (3) business days prior to the sentencing date. Any motion to continue the sentencing date shall be filed at least three (3) business days prior to the sentencing date. DATED this 2nd day of March, 2007.

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