United States District Court, N.D. Iowa, Cedar Rapids Division
REPORT AND RECOMMENDATION
Williams Chief United States Magistrate Judge.
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.
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.
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.
acknowledged that defendant had received a copy of the
Superseding Indictment, and had fully discussed these charges
with defendant's counsel.
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.
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.
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
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.
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.
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.
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.
was advised fully of the right to plead not guilty, or having
already entered a not guilty plea to persist in such ...