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United States v. Benalcazar

United States District Court, S.D. Florida

December 17, 2019

UNITED STATES OF AMERICA,
v.
HERVERT GODOY BENALCAZAR, Defendant.

          REPORT AND RECOMMENDATION ON CHANGE OF PLEA

          JACQUELINE BECERRA, UNITED STATES MAGISTRATE JUDGE

         THIS 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 December 12, 2019, this Court makes the following findings, and recommends that the guilty plea be accepted.

         1. This 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 he 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.

         2. This 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.

         3. Defendant pled guilty to Count 1 of the Indictment which charged Defendant with conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of Title 46, United States Code Section, Sections 70503(a)(1) and 70506(b). The Court advised Defendant that as to that charge there is a statutory minimum mandatory sentence of ten years imprisonment and a maximum sentence of life imprisonment, followed by a supervised release period of at least five years and up to life, a fine of up to $10, 000, 000.00, and a mandatory special assessment of $100.00. Defendant was also advised of the possibility of forfeiture. Defendant acknowledged that he understood the possible maximum penalties that could be imposed in the case.

         4. To 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.

         5. 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 he understood the terms of the plea agreement and that he had signed the plea agreement.

         6. Defendant also waived his right to appeal his sentence unless the government files an appeal and/or his 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. The undersigned finds that Defendant's waiver of her right to appeal her sentence in this case is knowing and voluntary.

         7. 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 offense.

         8. Therefore, the undersigned recommends that Defendant be found to have freely and voluntarily entered his guilty plea to Count I of the Indictment filed in this case, as more particularly described herein, and that Defendant be adjudicated guilty of that offense.

         9. A pre-sentence investigation report is being prepared for the District Court by the United States Probation Office. The sentencing date is February 20, 2020, at 2:00 p.m.

         10. Defendant is in custody and will remain in custody until sentencing.

         11. The parties were also instructed to immediately notify the Chambers of Chief Judge K. Michael Moore if the sentencing in ...


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