USA v. Muasau

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
HARDY FATUILESILA MUASAU
Defendant.
Case No. 3:22-cr-00033-SLG-KFR
FINAL REPORT AND RECOMMENDATION UPON A PLEA OF GUILTY
Upon Defendant's request to enter guilty pleas, pursuant to Rule 11 of the
Federal Rules of Criminal Procedure, to Counts 1 of the Indictment, charging a
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), Distribution of a Controlled Substance,
and 18 U.S.C. §§ 922(g)(1) , Felon in Possession of a Firearm, respectively, [Doc. 2],
the District Court referred this matter to the Magistrate Judge, with the written and
verbal consents of Defendant, counsel for Defendant, and counsel for the United
States. As part of the plea agreement in this matter, Defendant agreed to plead guilty
in 	Count 1 to the lesser-included 	offense 	of 21 U.S.C. § 841(a)(1), (b)(1)(A),
Distribution of a Controlled Substance, to wit, between 5 and 50 grams of actual
methamphetamine.
Thereafter, the matter came before this Court for a hearing on Defendant’s
guilty pleas, in full compliance with Rule 11, Federal Rules of Criminal Procedure, in
open court and on the record.
In consideration of that hearing and the colloquy made by Defendant under
oath, on the record, in the presence of counsel, and the remarks of the Assistant
United States Attorney,
Case 3:22-cr-00033-SLG-KFR Document 44 Filed 03/01/23 Page 1 of 4

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Final R&R re: Guilty Plea
United States v. Muasau
3:22-cr-00033-SLG-KFR
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A. 	I make the following FINDINGS – that Defendant understands:
☒ That any false statements made by Defendant under oath may later be
used against him in a prosecution for perjury;
☒ The right to persist in a plea of not-guilty;
☒ The consequences of not being a United States citizen;
☒ The nature of the charges against Defendant;
☒ The loss of certain federal benefits;
☒ 	The 	maximum 	possible 	sentence, 	including 	imprisonment, 	fine,
supervised release, and any applicable mandatory minimum sentence;
☒ The Court’s authority to order restitution1;
☒ The mandatory special assessment;
☒ Any applicable forfeiture;
☒ The right to a speedy and public trial by jury;
☒ 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;
☒ The right to: confront and cross-examine adverse witnesses, to remain
silent, to testify and present evidence, and to compel the attendance of
witnesses;
☒ That a plea of guilty operates as a waiver of trial rights;
1 As it relates to Count 1, Defendant pled guilty to the lesser-included offense 21 U.S.C. §
841(a)(1), (b)(1)(B). Accordingly, the Court advised Defendant of the sentences applicable
to this offense, as opposed to the greater penalties applicable to the charge alleged in the
Indictment. See Docket 42 in United States v. Wehnes, 3:22-cr-00021-SLG-KFR for Court’s
prior order in a similar case that “drug quantity [is an] element of the offense” and
therefore facts contained within a Factual Basis admitting to a certain drug quantity do not
expose Defendant to a higher mandatory minimum and maximum sentence beyond the
lesser-include offense identified in the plea agreement.
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Final R&R re: Guilty Plea
United States v. Muasau
3:22-cr-00033-SLG-KFR
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☒ That Defendant knowingly, intelligently, and voluntarily waives all right
to appeal or collaterally attack (except on the grounds of ineffective
assistance of counsel and the voluntariness of his pleas); and
☒ That in determining a sentence, the court’s obligation to calculate the
applicable 	sentencing 	guideline 	range 	pursuant 	to 	the 	Sentencing
Guidelines promulgated by the United States Sentencing Commission
and to consider that range, as well as departures under the Sentencing
Guidelines, and variances under 18 U.S.C. §3553(a).
B. 	I further FIND:
1. 	Defendant is competent to enter an informed plea;
2. Defendant is aware of his rights and has had the advice of legal counsel;
3. 	That 	the 	pleas 	of 	guilty 	by 	Defendant 	have 	been 	knowingly 	and
voluntarily made and are not the result of force, threats, or coercion;
4. Any agreements or promises which induced the plea of guilty are set
forth in the written plea agreement or on the record; and
5. 	That there is a factual basis for Defendant’s pleas.
B. 	I RECOMMEND:
☒ That the District Court accept Defendant’s plea of guilty to the following:
1. 	the lesser-included offense of Count 1 of the Indictment, specifically,
a violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), Distribution of a
Controlled Substance, to wit, between 5 grams and 50 grams of pure
methamphetamine, and
2. Count 	2 	of 	the 	Indictment, 	charging 	a 	violation 	18 	U.S.C. 	§§
922(g)(1) , Felon in Possession of a Firearm.
☒ That the District Court accept Defendant’s admission to the Criminal
Forfeiture Allegation.
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Final R&R re: Guilty Plea
United States v. Muasau
3:22-cr-00033-SLG-KFR
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D. IT IS ORDERED:
That a Presentence Report be prepared by the U.S. Probation Office.
1. 	Any objection(s) to the presentence report shall be filed no later than
fourteen (14) days after receiving the presentence report (Fed. R. Crim.
P. 32(f)(1)); and
2. Any sentencing memorandum shall be filed no later than seven (7)
business days prior to sentencing (D.Ak. L.Cr.R. 32.1(d)).
The Sentencing hearing will be before a United States District Judge. The court
excludes time from February 23, 2023, 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 28th of February 2023, at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
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 (7) 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.2
2 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:22-cr-00033-SLG-KFR Document 44 Filed 03/01/23 Page 4 of 4