USA v. Lively et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JAMES ARMIN FOWNER, JR.,
Defendant.
Case No. 3:21-cr-00050-TMB-MMS-2
FINAL REPORT AND
RECOMMENDATION OF THE
MAGISTRATE JUDGE UPON A PLEA
OF GUILTY
Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, upon Defendant's
request to enter a guilty plea to Counts 1 and 2 of the Indictment1 and admit any criminal
forfeiture allegation, this matter was referred to the Magistrate Judge by the District Court,
with the oral and written consents of Defendant, counsel for Defendant, and counsel for
the United States2.
Thereafter, the matter came on for a hearing on Defendant’s guilty plea, in full
compliance with Rule 11, Federal Rules of Criminal Procedure, before the Magistrate
Judge, in open court and on the record.
1 Doc. 2.
2 See Doc. 45.
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United States v.Fowner
3:21-cr-00050-TMB-MMS
Final R&R re Plea of Guilty
Page 2
In consideration of that hearing and the allocution made by the Defendant under
oath, on the record, in the presence of counsel, and the remarks of the Assistant United
States Attorney,
A. 	I make the following FINDNGS – that the Defendant understands:
1. 	That any false statements made by the Defendant under oath may later be
used against him in a prosecution for perjury;
2. 	The right to persist in a plea of not-guilty;
3. 	The consequence of not being a United States citizen, including 	the
possibility of deportation;
4. 	The nature of the charges against him;
5. 	The maximum possible sentence, including imprisonment, fine, and the
effect of the supervised release term;
6. 	Any applicable mandatory minimum penalty;
7. 	The Court’s authority to order restitution;
8. 	The Court’s obligation to impose a special assessment;
9. 	Any applicable forfeiture;
10. The right to a speedy and public trial by jury;
11. The right to be represented by counsel – and if necessary, to have the Court
appoint counsel at trial, and at every other stage of the proceedings;
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United States v.Fowner
3:21-cr-00050-TMB-MMS
Final R&R re Plea of Guilty
Page 3
12. The right to confront and cross-examine adverse witnesses, to be protected
from compelled self-incrimination, to testify and present evidence, and to
compel the attendance of witnesses;
13. The Defendant’s waiver of trial rights if the Court accepts a guilty plea; and
14. That in determining a sentence, the court’s obligation to calculate the
applicable sentencing guideline range and to consider that range pursuant to
the Sentencing Guidelines promulgated by the United States Sentencing
Commission, possible departures under the Sentencing Guidelines, and
variances under 18 U.S.C. §3553(a).
B. 	I further FIND that:
1. 	The Defendant is competent to enter a plea;
2. 	That the plea of guilty by the Defendant has been knowingly and voluntarily
made and is not the result of force, threats, or coercion;
3. 	Any agreements or promises which induced the plea of guilty are set forth
on the record or in the written plea agreement; and
4. 	That there is a factual basis for the Defendant’s plea.
C. 	I RECOMMEND that the District Court accept the Defendant’s plea of
guilty to Counts 1 and 2 of the Indictment which charges Title 18, United States Code,
Sections 922(g)(1) and 924(a)(2) – Felon in Possession of Firearms; and admission to the
criminal forfeiture allegations.
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United States v.Fowner
3:21-cr-00050-TMB-MMS
Final R&R re Plea of Guilty
Page 4
IT IS FURTHER ORDERED:
D. 	A Presentence Report be prepared.
1. 	Any objection(s) to the presentence report shall be filed no later than fourteen
(14) days after receiving the presentence report pursuant to Fed. R. Crim. P.
32(f)(1);
2. 	Any sentencing memorandum shall be filed no later than seven (7) business
days prior to sentencing pursuant to L.Cr.R. 32.1(e).
The Sentencing hearing will be before United States District Judge Timothy
Burgess. The court excludes time from November 5, 2021 until the time of sentencing
pursuant to 18 U.S.C. §3161(h)(1)(G) on the grounds that the District Judge will be
considering the proposed plea agreement.
DATED this 21st day of January, 2022, at Anchorage, Alaska.
s/ Matthew M. Scoble 	____
MATTHEW M. SCOBLE
Chief United States Magistrate Judge
This 	Report 	and 	Recommendation 	is 	being 	issued 	as 	a 	Final 	Report 	and
Recommendation. Pursuant to Fed. R. Crim P. 59(b)(3), any objections will be considered
by the District Court Judge who will accept, reject, or modify the recommendation
following de novo review. 	Any objections must be filed within four (4) days from the
date of service of this Report and Recommendation. The shortened objection deadline
is due to the request of the District Court Judge. Fed. R. Crim P. 59(b)(2) and D. Ak.
L.M.R. 6(a) authorizes the court to alter the standard objection deadlines.
Reports and recommendations are not appealable orders. 	Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s
judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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