United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON CHANGE OF PLEA
JACQUELINE BECERRA, UNITED STATES MAGISTRATE JUDGE.
CAUSE was before the Court following an Order of Reference to
conduct a proceeding for acceptance of a guilty plea by
Defendant in this case. Based upon the change of plea hearing
conducted on August 7, 2019, this Court makes the following
findings, and recommends that the guilty plea be accepted.
Court advised Defendant of his right to have these
proceedings conducted by the District Judge assigned to the
case, and that this Court was conducting the change of plea
hearing pursuant to an Order of Reference from the District
Court. This Court further advised Defendant that the District
Judge assigned to this case would be the sentencing judge and
would make all findings and rulings concerning
Defendant's sentence. This Court advised Defendant that
she did not have to permit the undersigned United States
Magistrate Judge to conduct this hearing and could request
that the change of plea hearing be conducted by the District
Judge assigned to the case. Defendant, Defendant's
attorney and the Assistant United States Attorney all
consented on the record to this Court conducting the change
of plea hearing.
Court conducted a plea colloquy in accordance with the
outline set forth in the Bench Book for District Judges, and
in accordance with Fed. R. Crim. P. 11.
Defendant pled guilty to Count 1 of the Indictment which
charged Defendant with Conspiracy to Possess with Intent to
Distribute a Controlled Substance, that is 500 grams or more
of a mixture and substance containing a detectable amount of
cocaine, in violation of Title 21, United States Code,
Section 846. The Court advised Defendant that as to that
charge there is a statutory sentence of: (1) a minimum
mandatory sentence of five years in prison; (2) a maximum
potential sentence of forty years in prison; (3) followed by
a term of supervised release of five years; (4) a fine of up
to $5, 000, 000; and (5) a mandatory special assessment of
$100.00. Defendant acknowledged that she understood the
possible maximum penalties that could be imposed in the case,
including forfeiture and restitution.
set forth the factual basis for the entry of the plea,
Defendant and the Government submitted a written Factual
Proffer. The Factual Proffer, also read by the Government at
the hearing, established all the essential elements of the
crime to which Defendant is pleading guilty. Defendant
acknowledged that the Factual Proffer was accurate.
There is a written plea agreement which has been entered into
by the parties in this case. This Court reviewed that plea
agreement on the record and Defendant acknowledged that she
understood the terms of the plea agreement and that she had
signed the plea agreement.
Defendant also waived her right to appeal her sentence unless
the government files an appeal and/or her sentence exceeds
the maximum permitted by statute or is the result of an
upward departure and/or a variance from the guideline range
that the Court establishes at sentencing. Defendant also
waived her right to claim that the statute at issue is
unconstitutional and/or that the admitted conduct does not
fall within the scope of the statute of conviction. In
addition, the undersigned finds that Defendant's waiver
of her right to appeal her sentence in this case is knowing
Based upon all of the foregoing and the plea colloquy
conducted by this Court, the undersigned finds that Defendant
is fully competent and capable of entering an informed plea,
that Defendant is aware of the nature of the charges and the
consequences of the plea, and that the plea of guilty is a
knowing and voluntary plea supported by an independent basis
in fact containing each of the essential elements of the
Therefore, this Court recommends that Defendant be found to
have freely and voluntarily entered her guilty plea to Count
1 of the Indictment filed in this case, as more particularly
described herein, and that Defendant be adjudicated guilty of
pre-sentence investigation report is being prepared for the
District Court by the United States Probation Office. The
sentencing date is November 7, 2019, at 2:00 p.m.
Defendant's conditions of release remain the same.
it is hereby:
that Defendant XAXAVI ISOLIS LOPEZ-NIEVES's plea of
guilty be accepted, that Defendant be adjudicated guilty of
the offense to which she has entered her plea of guilty and
that a sentencing hearing be conducted for final disposition
of this matter.
parties will have fourteen calendar days from the date of
service of this Report and Recommendation within which to
file written objections, if any, for ...