U.S. v. Moffitt

• Decision Date: 07 November 2006
• Docket Number: Civil No. 3:06-cr-00066-W.
• Citation: 527 F.Supp.2d 474
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. Gregory Lawshawn MOFFITT, Defendant.

527 F.Supp.2d 474

UNITED STATES of America, Plaintiff, v. Gregory Lawshawn MOFFITT, Defendant.

Civil No. 3:06-cr-00066-W.

United States District Court, W.D. North Carolina, Charlotte Division.

November 7, 2006.

COPYRIGHT MATERIAL OMITTED

C. Nicks Williams, Jonathan A. Vogel, U.S. Attorney's Office, Charlotte, NC, for Plaintiff.

Peter Adolf, Charlotte, NC, for Defendant.

ORDER DENYING BOND

FRANK D. WHITNEY, District Judge.

THIS MATTER is before the Court on Defendant's Motion for Bond, filed August 11, 2006, (Doc. No. 14), and the Government's Response in Opposition, filed October 24, 2006 (Doc. No. 16). The Government argues that pursuant to 18 U.S.C. § 3143(a)(2), Defendant must be detained because he has been found guilty of a "crime of violence" and is awaiting imposition of a sentence. For the reasons set forth herein, the Court denies Defendant's Motion for Bond.

I. ANALYSIS OF 18 U.S.C. § 3143

Section 3143(a)(2) of the Bail Reform Act provides that the Court "shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained" unless the requirements of sections 3143(a)(2)(A) and 3143(a)(2)(B) are satisfied. (Emphasis added). This district has recognized that 18 U.S.C. § 3143 creates a presumption that a person who has entered a guilty plea shall remain in custody. United States v. Hamrick, 720 F.Supp. 66, 67 (W.D.N.C.1989); see also United States v. Williams, No. 3:01-cr-183, Doc. No. 77 (W.D.N.C., July 25, 2002).

A. "Crime of Violence"

The Court first considers the issue of whether Defendant has been found guilty of a "crime of violence," as identified in 18 U.S.C. § 3142(f)(1)(A). Here, the record indicates Defendant was indicted on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On July 21, 2006, Defendant pleaded guilty in a straight-up plea before Magistrate Judge Carl Horn, III, to the one count bill of indictment. This Court ruled in United States v. Black, No. 3:04-cr-00052 (W.D.N.C., oral order July 17, 2006), that a violation of 18 U.S.C. § 922(g)(1) constitutes a "crime of violence" for purposes of the Bail Reform Act. This ruling comports with rulings by other judges in this district, as well as other courts within the Fourth Circuit. United States v. Redmond, No. 3:06-cr-00092, Doc. No. 10 (W.D.N.C., May 30, 2006) (Voorhees, J.); United States v. Dykes, No. 3:04-cr-00280 (W.D.N.C., oral order Dec. 19, 2005) (Conrad, J.); United States v. Austin, No. 1:06-cr-00018, Doc. No. 21 (W.D.N.C., July 18, 2006) (Howell, M.J.); United States v. Allen, 409 F.Supp.2d 622 (Md.2006); United States v. Powers, 318 F.Supp.2d 339 (W.D.Va.2004); United States v. Spry, 76 F.Supp.2d 719 (S.D.W.Va., 1999); United States v. Chappelle, 51 F.Supp.2d 703 (E.D.Va.1999). Therefore, the Court finds that the 18 U.S.C. § 922(g)(1) charge to which Defendant pleaded guilty constitutes a "crime of violence," which is an offense described in section 3142(f)(1)(A).¹

B. Acceptance of Guilty Plea by a Magistrate Judge

The next issue is whether Defendant's guilty plea before a magistrate judge satisfies the requirement in § 3143 that Defendant be "found guilty." Although unpublished, the Fourth Circuit case of United States v. Breedlove, 7 Fed.Appx. 268, 2001 WL 401307 (4th Cir.2001), recognizes that a magistrate judge's recommendation to accept a plea is binding, notwithstanding a deferment of acceptance to the district court. Specifically, the Breedlove court held, "Given that [the defendant] consented to have the magistrate judge preside over his Rule 11 hearing and tendered his plea at that time, the magistrate judge's recommendation to accept his plea is binding." Id. at 269, 2001 WL 401307 at *1 (citing United States v. Hyde, 520 U.S. 670, 677, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997)). Since Breedlove stands for the proposition that a magistrate judge's recommendation to accept a plea is binding, it follows that the magistrate judge's actual acceptance of the plea is also binding. Id.,see also United States v. Gibson, 217 F.3d 841, 2000 WL 962513, *1 (4th Cir. 2000) (unpublished) ("Given that [the defendant] consented to the magistrate judge's presiding over the Rule 11 hearing at which time [the defendant] tendered his plea, we find that the magistrate judge's acceptance of the plea is equally binding....").

In United States v. Horne, 3:04-cr-213 (W.D.N.C., oral order Nov. 1, 2005), the court considered the issue of whether acceptance by the magistrate judge of a guilty plea is binding for purposes of the Bail Reform Act, and, if so, whether it triggers the heightened scrutiny of 18 U.S.C. § 3143. Following Breedlove, the Horne court ruled the defendant's plea before the magistrate judge was accepted, was binding, and triggered the scrutiny set forth in 18 U.S.C. § 3143. Consequently, the Horne court ordered Defendant to be detained following acceptance of his guilty plea and pending his sentencing.

The case of United States v. Luisa, 266 F.Supp.2d 440, 446 (W.D.N.C.2003), is also instructive on this issue. In Luisa, the Court held, "the use within § 3143(a)(2) of the phrases `a person who has been found guilty' and who `is awaiting imposition' of sentence clearly includes a defendant who has entered a guilty plea but who has not yet been sentenced." Thus, for purposes of § 3143(a)(2), a defendant is "found guilty" after the magistrate judge accepts the plea, even though the district court has not yet sentenced the defendant.

The Court finds the Breedlove, Gibson, Home, and Luisa decisions, as well as the authorities cited therein, to be persuasive authority. In this case, the record shows Defendant knowingly and voluntarily pleaded guilty and that Magistrate Judge Horn accepted Defendant's guilty plea on behalf of the district court. Indeed, Judge Horn signed Defendant's guilty plea and plainly indicated, "[T]he defendant's plea is hereby accepted." (Doc. No. 12). During the plea hearing, Defendant expressly consented to the magistrate judge's acceptance of the plea when he responded affirmatively to the question, "Recognizing your right to proceed before a District Judge, do you expressly consent to proceed in this Court, that is, before a U.S. Magistrate Judge?" (Doc, No. 12). Accordingly, Defendant's guilty plea before Magistrate Judge Horn in this case is binding such that Defendant has been "found guilty" pursuant to 18 U.S.C. § 3143(a)(2).²

C. Exceptions Allowing Release of a Defendant that has been "Found Guilty"

Next, the Court considers whether the requirements of 18 U.S.C. § 3143(a)(2)(A) and (B) are satisfied to permit the Court to release Defendant. Section 3143(a)(2) provides the Court shall order that a person guilty of a "crime of violence" and awaiting imposition of a sentence be detained, unless the following conditions are met:

(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

The Fourth Circuit has recognized that "use of the word `and' in § 3143(a)(2) indicates both subsections (A) and (B) must be satisfied in order to grant release pending sentencing." United States v. Irvin, 2 F.3d 72, 73 n. 1 (4th Cir.1993) (emphasis added). The Court finds that Defendant cannot satisfy subsection (A) of 18 U.S.C. § 3143(a)(2). In fact, neither of the requirements of § 3143(a)(2)(A)(i) and (ii) have been met. There is no "substantial likelihood that a motion for acquittal or new trial will be granted" since Defendant pleaded guilty, nor has an attorney of the United States recommended that no sentence of imprisonment be imposed.³ 18 U.S.C. § 3143(a)(2)(A)(i-ii). Because the Court finds that subsection (A) cannot be satisfied, the Court, as a matter of law, cannot release Defendant pending sentencing.

Assuming arguendo that subsection (A) was satisfied and did not legally bar the Court from considering Defendant's release, the Court also does not find clear and convincing evidence that Defendant is not likely to flee or pose a danger to any other person or the community so as to satisfy 3143(a)(2)(B). Indeed, the evidence is to the contrary. The evidence shows Defendant has an extensive criminal record. The present charge for possession of a firearm by a felon rests on Defendant's prior felony conviction for possession with intent to sell and deliver cocaine. Further, the evidence before the Court shows that Defendant, on numerous occasions, failed to appear in Court to answer for criminal charges. The criminal record of Defendant and his actions demonstrate that he is a person who is incapable of being supervised.⁴ Thus, subsection B of § 3143(a)(2) is not satisfied.

II. CONCLUSION

In sum, Defendant was found guilty of a "crime of violence" when Magistrate Judge Horn accepted Defendant's plea of guilty to a violation of 18 U.S.C. § 922(g)(1). Moreover, neither of the exceptions to the mandatory language of 3143(a)(2) apply in this case to perrhit Defendant's release on bond. Therefore, pursuant to 18 U.S.C. § 3143(a)(2) of the Bail Reform Act, the Court orders that Defendant be detained while he awaits sentencing.

IT IS, THEREFORE, ORDERED that Defendant's Motion for Bond is DENIED.

1. Defendant has argued that the enactment of the Adam Walsh Child Protection Act and the amendments to § 3142 contained within the Act clarify that possession of a firearm is not classified as a "crime of violence." The Court rejects Defendant's argument. The Adam Walsh Child Protection Act amended 18 U.S.C. § 3142(f)(1) to include a requirement that a judge must...