USA v. Swain

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DOMINIQUE KYLE JAMES SWAIN,
Defendant.
Case No. 3:19-cr-00088-SLG-DMS
FINAL REPORT AND
RECOMMENDATION OF THE
MAGISTRATE JUDGE UPON A
PLEA OF GUILTY
Upon Defendant's request to enter a guilty plea to Count 1 of the Indictment,
Felon in Possession of a Firearm, pursuant to Rule 11 of the Federal Rules of Criminal
Procedure, this matter was referred to the Magistrate Judge by the District Court, with
the written1 and 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, in the presence of counsel, and the remarks of the Assistant United
States Attorney,
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1 Doc. 62.
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United States v. Swain
3:19-cr-00088-SLG-DMS
Final R&R re Plea of Guilty
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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 nature of the charges against him;
4. 	The maximum possible sentence, including imprisonment, fine, and the
effect of the supervised release term;
5. 	Any applicable mandatory minimum penalty;
6. 	The Court’s authority to order restitution;
7. 	The Court’s obligation to impose a special assessment;
8. 	Any applicable forfeiture;
9. 	The right to a speedy and public trial by jury;
10. 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;
11. 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;
12. The Defendant’s waiver of trial rights if the Court accepts a guilty plea or
nolo contendere;
13. That he knowingly, intelligently and voluntarily waived certain rights to
appeal or collaterally attack his conviction and any sentence imposed if it
is within the range contemplated by the plea agreement; and
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United States v. Swain
3:19-cr-00088-SLG-DMS
Final R&R re Plea of Guilty
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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 and admission of the criminal forfeiture 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
in the written plea agreement or on the record; and
4. 	That there is a sufficient factual basis for the Defendant’s plea and the
factual basis is in conformity with Rehaif v. United States, 139 S.Ct.
2191 (2019).
C. 	I RECOMMEND that the District Court accept the Defendant’s plea of
guilty to Count 1 of the Indictment which charges: Title 18, United States Code, Section
922(g)(1) and 924(a)(2) – Felon in Possession of a Firearm and admission to the
forfeiture allegation. I FURTHER RECOMMEND the District Court vacate the Final
Pretrial Conference date and Trial By Jury Date.
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United States v. Swain
3:19-cr-00088-SLG-DMS
Final R&R re Plea of Guilty
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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 Sharon
L. Gleason on April 28, 2020 at 1:30 p.m. The Court excludes time from February 3,
2020 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 6th day of February, 2020, at Anchorage, Alaska.
s/ Deborah M. Smith
CHIEF U.S. 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 three
(3) 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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