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United States v. McPherson

United States District Court, N.D. Iowa, Western Division

July 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN CHARLES MCPHERSON, II, Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge.

         I. INTRODUCTION

         This 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.

         II. APPLICABLE STANDARDS

         A 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.

         Any 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”).

         As the 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 are filed:

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 standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         III. THE R&R

         McPherson 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.

         Judge 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 ...


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