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, ) ) v. ) CR-04-1202-03-PHX-JAT ) Dennis Barcelo Gaytan, )FINDINGS AND RECOMMENDATION ) OF THE MAGISTRATE JUDGE ) UPON A PLEA OF GUILTY ) AND ORDER Defendant. ) ___________________________________) 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 Edward C. Voss on April 18, 2006 with the written consents of the Defendant, counsel for the Defendant, and counsel for the United States of America. 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, (A) I FIND as follows: (1) that Defendant understands the nature of the charge against him to which the plea is offered; (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

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sentence is, including the effect of the supervised release term, and defendant
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understands that the sentencing guidelines are only advisory and that the court is free to exercise its discretion to impose any reasonable sentence allowed by law; (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 trial, the right to a direct appeal, and the right to a collateral attack; and (8) 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 Teilborg's decision whether to accept or reject the plea agreement after review of the presentence report. ORDER IT IS ORDERED that any objection(s) 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 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.

Case 2:04-cr-01202-JAT

Document 116

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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 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 18th day of April, 2006.

Copies to: AUSA, Defense Counsel

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