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United States v. Pena

United States District Court, N.D. Iowa, Cedar Rapids Division

November 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH JOHN PENA, Defendant.

          REPORT AND RECOMMENDATION

          C.J. Williams Chief United States Magistrate Judge.

         On November 20, 2017, the above-named defendant, Kenneth John Pena, by consent (Doc. 47), appeared before the undersigned United States Magistrate Judge pursuant to Federal Rule of Criminal Procedure 11, and entered a plea of guilty to Count One of the Superseding Indictment (Doc. 29). After cautioning and examining defendant under oath concerning each of the subjects mentioned in Rule 11, the Court determined that the guilty plea was knowledgeable and voluntary, and the offense charged was supported by an independent basis in fact containing each of the essential elements of the offense. The Court therefore RECOMMENDS that the plea of guilty be accepted and defendant be adjudged guilty.

         At the commencement of the Rule 11 proceeding, defendant was placed under oath and advised that if defendant answered any questions falsely, defendant could be prosecuted for perjury or for making a false statement. Defendant also was advised that in any such prosecution, the Government could use against defendant any statements made under oath.

         The Court asked a number of questions to ensure defendant's mental capacity to enter a plea. Defendant stated defendant's full name, age, and extent of schooling. The Court inquired into defendant's history of mental illness and addiction to narcotic drugs. The Court further inquired into whether defendant was under the influence of any drug, medication, or alcoholic beverage at the time of the plea hearing. From this inquiry, the Court determined that defendant was not suffering from any mental disability that would impair defendant's ability to make knowing, intelligent, and voluntary pleas of guilty to the charges.

         Defendant acknowledged that defendant had received a copy of the Superseding Indictment, and had fully discussed these charges with defendant's counsel.

         The Court determined that defendant was pleading guilty under a plea agreement with the Government. After confirming that a copy of the written plea agreement was in front of defendant and defendant's counsel, the Court determined that defendant understood the terms of the plea agreement. The Court summarized the plea agreement, and made certain defendant understood its terms.

         Defendant was advised also that after the plea was accepted, defendant would have no right to withdraw the plea at a later date, even if the sentence imposed was different from what defendant or defendant's counsel anticipated.

         The Court summarized the charge against defendant, and listed the elements of the crime. The Court determined that defendant understood each and every element of the crime, and defendant's counsel confirmed that defendant understood each and every element of the crime charged. The Court elicited a full and complete factual basis for all elements of the crime charged in Count One of the Superseding Indictment.

         The Court advised defendant of the consequences of the plea, including the maximum fine, the maximum term of imprisonment, the mandatory minimum term of imprisonment, and the term of supervised release. With respect to Count One, defendant was advised that the maximum fine is $5, 000, 000; the maximum term of imprisonment is forty (40) years; the mandatory minimum term of imprisonment is five (5) years; and the maximum period of supervised release is life; and the minimum period of supervised release is four (4) years. Defendant also was advised that the Court is obligated to impose a special assessment of $100, which defendant must pay. Finally, defendant was advised of the collateral consequences of a plea of guilty. Defendant acknowledged that defendant understood all of the above consequences.

         The Court explained supervised release to defendant, and advised that a term of supervised release could be imposed in addition to the sentence of imprisonment. Defendant was advised that there are conditions of supervised release, and that if defendant were found to have violated a condition of supervised release, then the term of supervised release could be revoked and defendant could be required to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release. Defendant was advised that parole has been abolished.

         The Court also explained to defendant that the district judge would determine the appropriate sentence at the sentencing hearing. Defendant confirmed that defendant understood the Court would not determine the appropriate sentence until after the preparation of a presentence report, which the parties would have the opportunity to challenge. Defendant acknowledged that defendant understood the sentence imposed might be different from what defendant's attorney had estimated. Defendant also acknowledged that the plea agreement contains an appeal waiver, and defendant agreed to waive appeal rights as set out in that waiver.

         Defendant indicated that defendant had conferred fully with defendant's counsel and was fully satisfied with defendant's counsel. Defendant's attorney indicated that there was a factual basis for the guilty plea.

         Defendant was advised fully of the right to plead not guilty, or having already entered a not guilty plea to persist in such ...


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