Opinion
Case No. 18-20869-CR-HUCK/MCALILEY
01-04-2019
UNITED STATES OF AMERICA, Plaintiff, v. REY DE LOS SANTOS, Defendant.
REPORT AND RECOMMENDATION ON CHANGE OF PLEA
The Honorable Paul C. Huck referred this matter to me to conduct a change of plea hearing for Defendant Rey de los Santos. (ECF No. 17). I held that hearing on January 4, 2019, and for the following reasons recommend that the Court accept Defendant's plea of guilty.
1. At the outset of the hearing, I told Defendant of his right to have these proceedings conducted by Judge Huck, the presiding District Court Judge. I also advised Defendant that Judge Huck would sentence Defendant, and make all findings and rulings concerning Defendant's sentence.
2. Defendant was made aware that he did not have to permit this Magistrate Judge to conduct this hearing and could request that the change of plea hearing be conducted by Judge Huck. Defendant, Defendant's attorney, and the Assistant United States Attorney all agreed on the record and consented to my conducting the change of plea hearing.
3. I conducted the plea colloquy with Defendant in accordance with Federal Rule of Criminal Procedure 11.
4. Defendant pled guilty to the charges in Count 35 of the Superseding Indictment that he unlawfully entered the United States after having previously been deported, in violation of Title 8, United States Code. Section 1326(a) and (b)(2).
The parties entered into a written plea agreement and had that document with them at the hearing; the plea agreement was thereafter filed with the Court. I reviewed that plea agreement on the record and the Defendant acknowledged that he carefully read that agreement, signed it, and agreed to its terms.
5. The parties also agreed to a written factual proffer, and had that document with them at the hearing. This was later filed with the Court. Defendant said that he read that factual proffer, and agreed to its accuracy; he also confirmed that he signed it. Government counsel stated a factual basis for the entry of Defendant's guilty plea, and identified all of the essential elements of the offense to which Defendant plead guilty, including any sentencing enhancements and/or aggravating factors that may be applicable. Defendant also explained in his own words, how he committed the crime charged in the Indictment. I found that a factual basis exists for Defendant's plea of guilty. Defendant was also advised of the statutory maximum penalties. Defendant acknowledged that he understood these possible penalties, including the maximum period of up to twenty (20) years' imprisonment.
6. Based upon the foregoing, and the statements and findings at the plea colloquy, which I incorporate into this Report and Recommendation, I find that Defendant was competent and capable of entering an informed plea, and that his guilty plea was knowing and voluntary and has factual support. I recommend that the Court adopt these findings, and adjudicate Defendant guilty of the crime charged in the Indictment.
7. The U.S. Probation Office will prepare a pre-sentence investigation report, and Defendant was advised that Judge Huck will issue an order setting the date for his sentencing hearing.
Accordingly, I RECOMMEND that the Court accept Defendant's plea of guilty, adjudicate Defendant guilty of the crime charged in the Superseding Indictment, and that a sentencing hearing be conducted for final disposition of this matter.
No later than fourteen days from the date of this Report and Recommendation the parties may file any written objections to this Report and Recommendation with Judge Huck, who is obligated to make a de novo review of only those factual findings and legal conclusions that are the subject of objections. Only those objected-to factual findings and legal conclusions may be reviewed on appeal. See Thomas v. Arn, 474 U.S. 140 (1985), 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b), 11th Cir. R. 3-1 (2016).
RESPECTFULLY RECOMMENDED this 4th day of January 2019, at Miami, Florida.
/s/_________
CHRIS McALILEY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Paul C. Huck
Counsel of record