CRIMINAL NO. 1:14CR66-8
ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S OPINION/REPORT RECOMMENDATION CONCERNING PLEA OF GUILTY IN FELONY CASE AND SCHEDULING SENTENCING HEARING
On November 14, 2014, defendant, Rodney Wayne Swiger, ("Swiger") appeared before United States Magistrate Judge John S. Kaull and moved for permission to enter a plea of GUILTY to Count Eighteen of the Indictment. Swiger stated that he understood that the magistrate judge is not a United States District Judge, and consented to pleading before the magistrate judge. This Court had referred the guilty plea to the magistrate judge for the purposes of administering the allocution pursuant to Federal Rule of Criminal Procedure 11, making a finding as to whether the plea was knowingly and voluntarily entered, and recommending to this Court whether the plea should be accepted.
Based upon Swiger's statements during the plea hearing and the government's proffer to establish an independent basis in fact, the magistrate judge found that he was competent to enter a plea, that the plea was freely and voluntarily given, that he was aware of the nature of the charges against him and the consequences of his plea, and that a factual basis existed for the tendered plea. On November 17, 2014, the magistrate judge entered an Opinion/Report and Recommendation Concerning Plea of Guilty in Felony Case ("R&R") (dkt. no. 100) finding a factual basis for the plea, and recommending that this Court accept the plea of guilty to Count Eighteen of the Indictment.
The magistrate judge also directed the parties to file any written objections to the R&R within fourteen (14) days after service of the R&R. The magistrate judge further directed that failure to file objections would result in a waiver of the right to appeal from a judgment of this Court based on the report and recommendation. On November 18, 2014, the government, by Assistant United States Attorney Shawn A. Morgan ("Morgan"), responded to the R&R stating the government had no objection (dkt. no. 110). Swiger did not file any objections.
Accordingly, this Court ADOPTS the magistrate judge's R&R, ACCEPTS Swiger's guilty plea, and ADJUGES him GUILTY of the crime charged in Count Eighteen of the Indictment.
Pursuant to Fed. R. Crim. P. 11(e)(2) and U.S.S.G. § 6B1.1(c), the Court DEFERS acceptance of the proposed plea agreement until it has received and reviewed the presentence report prepared in this matter.
Pursuant to U.S.S.G. § 6A1 et seq., the Court ORDERS that:
1. The Probation Officer undertake a presentence investigation of RODNEY WAYNE SWIGER, and prepare a presentence report for the Court;
2. The Government and Swiger are to provide their versions of the offense to the probation officer by December 15, 2014;
3. The presentence report is to be disclosed to Swiger, defense counsel, and the United States on or before February 2, 2015; however, the Probation Officer is not to disclose the sentencing recommendations made pursuant to Fed. R. Crim. P. 32(e)(3);
4. Counsel may file written objections to the presentence report on or before February 16, 2015;
5. The Office of Probation shall submit the presentence report with addendum to the Court on or before March 2, 2015; and
6. Counsel may file any written sentencing statements and motions for departure from the Sentencing Guidelines, including the factual basis from the statements or motions, on or before March 16, 2015.
The magistrate judge continued Swiger on bond pursuant to the Order Setting Conditions of Release (dkt. no. 20) entered on September 18, 2014.
The Court will conduct the sentencing hearing for the defendant on Monday, April 6, 2015 at 10:30 A.M. at the Clarksburg, West Virginia point of holding court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record, the defendant and all appropriate agencies. DATED: December 1, 2014
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE