United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON REPORT AND
Leonard T. Strand, Chief Judge.
case is before me on a Report and Recommendation (R&R)
filed on June 6, 2017, by the Honorable Kelly K.E. Mahoney,
United States Magistrate Judge. See Doc. No. 23.
Judge Mahoney recommends that I deny defendant's motion
(Doc. No. 16) to dismiss the indictment. McPherson filed his
objection (Doc. No. 29) on June 23, 2017.
district judge must review a magistrate judge's R&R
under the following standards:
Within fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Crim.
P. 59(b). Thus, when a party objects to any portion of an
R&R, the district judge must undertake a de novo review
of that portion.
portions of an R&R to which no objections have been made
must be reviewed under at least a “clearly
erroneous” standard. See, e.g., Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that
when no objections are filed “[the district court
judge] would only have to review the findings of the
magistrate judge for clear error”).
Supreme Court has explained, “[a] finding is
‘clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). However, a district judge may elect to review an
R&R under a more-exacting standard even if no objections
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other
Thomas v. Arn, 474 U.S. 140, 150 (1985).
is charged with possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Doc. No. 2. He moves to dismiss the indictment pursuant to
Federal Rule of Criminal Procedure 12(b)(1), arguing that the
predicate offense is a misdemeanor and not a felony.
Mahoney noted that McPherson pleaded guilty to assault with a
deadly weapon in violation of California Penal Code §
245(a)(1) in March 1997. The charge is described as a
“felony” in the written plea form and McPherson
acknowledged that he could receive a maximum sentence of four
years in state prison. The plea form also asks whether
McPherson's attorney explained the consequences of the
plea. Among the list of consequences, “Priorable”
and “Serious felony prior/Prison prior” (with
“Prison prior” circled) are checked. Doc. No. 23
at 1 (citing Doc. No. 16-3). The California court ordered
that the “imposition of sentence be suspended”
and ordered three years' probation, beginning with formal
probation and converting to informal probation upon
verification from ...