USA v. Xayamonty

United States v. Xayamonty
Case No. 3:20-cr-00014-JMK-DMS
R&R re Plea of Guilty
Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
XENOPHON XAYAMONTY,
Defendant.
Case No. 3:20-cr-00014-JMK-DMS
REPORT AND
RECOMMENDATION OF THE
MAGISTRATE JUDGE UPON A
PLEA OF GUILTY
Upon Defendant's request to enter a guilty plea pursuant to Rule 11 of the
Federal Rules of Criminal Procedure to Count 1 of the Indictment: Distribution of
Methamphetamine, in violation of 21 U.S.C. §841(a)(1) and (b)(1)(A), and Count 4:
Carrying a Firearm During a Drug Trafficking Crime, in violation of 18 U.S.C.
§924(c)(1)(A)(i), and the defendant’s consent to plead before a Magistrate Judge
contained in the plea agreement, this matter was referred to the Magistrate Judge
by the District Court, with the additional oral consents of Defendant, counsel for
Defendant, and counsel for the United States.
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.
In consideration of that hearing and the allocution made by the Defendant
under oath on the record and in the presence of counsel, and the remarks of the
Assistant United States Attorney,
A. 	I 	make 	the 	following 	FINDINGS 	– 	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;
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United States v. Xayamonty
Case No. 3:20-cr-00014-JMK-DMS
R&R re Plea of Guilty
Page 2
2. 	The right to persist in a plea of “not guilty”;
3. 	The consequence of not being a United States citizen;
4. 	The nature of the charge(s) 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;
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
or nolo contendere; and
14. That he knowingly, intelligently and voluntarily waived his right to
appeal or collaterally attack his conviction and any sentence imposed if
it is within the range permitted by the plea agreement; and
15. That in determining a sentence, the Court’s obligation to calculate the
applicable sentencing guideline range and to consider that 	range,
possible 	departures 	under 	the 	Sentencing 	Guidelines, 	and 	other
sentencing factors 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 or threats or coercion;
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United States v. Xayamonty
Case No. 3:20-cr-00014-JMK-DMS
R&R re Plea of Guilty
Page 3
3. 	Any agreements or promises which induced the plea of guilty are set
forth in the written plea agreement or on the record; and
4. 	That there is a sufficient factual basis for the Defendant’s plea.
C. 	I RECOMMEND that the District Court accept the Defendant’s plea of
guilty to Count 1 of the Indictment: Distribution of Methamphetamine, in violation
of 21 U.S.C. §841(a)(1) and (b)(1)(A), and Count 4: Carrying a Firearm During a Drug
Trafficking Crime, in violation of 18 U.S.C. §924(c)(1)(A)(i), and admission to the
Criminal Forfeiture allegations. As part of the plea bargain, the Government agrees
to dismiss Counts 2, 3, 5 and 6 of the Indictment at the time of sentencing.
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 D.Ak. L.Cr.R. 32.1(d).
The Sentencing hearing will be held before United States District
Judge Joshua M. Kindred on September 13, 2021 at 10:00 a.m. in Anchorage
Courtroom 3. The Court excludes time from June 11, 2021 until the time of
sentencing pursuant to 18 U.S.C. §3161(h)(1)(G) on the ground that the District
Judge will be considering the proposed plea agreement.
DATED this 21 st day of June, 2021, at Anchorage, Alaska.
s/ Deborah M. Smith
DEBORAH M. SMITH
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 seven
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United States v. Xayamonty
Case No. 3:20-cr-00014-JMK-DMS
R&R re Plea of Guilty
Page 4
(7) days from the date of service of this Report and Recommendation. 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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