United States District Court, E.D. Texas, Beaumont Division
FINDINGS OF FACT AND RECOMMENDATION ON GUILTY PLEA
BEFORE THE UNITED STATES MAGISTRATE JUDGE
F. GIBLIN, UNITED STATES MAGISTRATE JUDGE.
order of the District Court, this matter was referred to the
undersigned United States Magistrate Judge for administration
of a guilty plea and allocution under Rules 11 and 32 of the
Federal Rules of Criminal Procedure. Magistrate judges have
the statutory authority to conduct a felony guilty plea
proceeding as an "additional duty" pursuant to 28
U.S.C. § 636(b)(3). United States v.
Bolivar-Munoz, 313 F.3d 253, 255 (5th Cir.
2002), cert denied, 123 S.Ct. 1642 (2003). On August
9, 2019, this cause came before the undersigned United States
Magistrate Judge for entry of a guilty plea by the defendant,
William Marlin Kirbow, on Counts One
and Four of the charging Indictment
filed in this cause.
One of the Indictment charges that from on or about November
1, 2017, the exact date being unknown to the Grand Jury, and
continuing thereafter until on or about January 9, 2019, in
the Eastern District of Texas and elsewhere, William Marlin
Kirbow, and co-defendants, did intentionally and knowingly
conspire, combine, confederate and agree together, with each
other, and with other persons known and unknown to the Grand
Jury, to possess with intent to distribute and distribute a
controlled substance, to wit; Schedule II controlled
substance, namely 50 grams or more of methamphetamine
"actual", in violation of 21 U.S.C. § 841
(a)(1), all in violation of 21 U.S.C. § 846.
Four of the Indictment charges that on or about November 15,
2017, in the Eastern District of Texas, William Marlin
Kirbow, defendant, did knowingly use and carry a firearm, to
wit: a Sig Sauer, Model P238, .380 caliber pistol, bearing
serial number 27B311162, during and in relation to a drug
trafficking crime occuring in the Eastern District of Texas
and elsewhere for which said defendant may be prosecuted in a
court of the United States, namely, possession with intent to
distribute 50 grams or more of a Schedule II controlled
substance, namely, methamphetamine "actual", in
violation of 18 U.S.C. § 924(c).
William Marlin Kirbow, entered a plea of guilty to Counts One
and Four of the Indictment into the record at the hearing.
conducting the proceeding in the form and manner prescribed
by Federal Rule of Criminal Procedure 11 the Court finds:
a. That Defendant, after consultation with counsel of record,
has knowingly, freely and voluntarily consented to the
administration of the guilty plea in this cause by a United
States Magistrate Judge in the Eastern District of Texas
subject to a final approval and imposition of sentence by the
b. That Defendant and the Government have entered into a plea
agreement and a plea agreement addendum which were addressed
in open court and entered into the record.
c. That Defendant is fully competent and capable of entering
an informed plea, that Defendant is aware of the nature of
the charges and the consequences of the plea, and that the
plea of guilty is a knowing, voluntary and freely made plea.
Upon addressing the Defendant personally in open court, the
Court determines that Defendant's plea is voluntary and
did not result from force, threats or promises. See
FED. R. CRIM. P. 11(b)(2).
d. That Defendant's knowing, voluntary and freely made
plea is supported by an independent factual basis
establishing each of the essential elements of the offense
and Defendant realizes that his conduct falls within the
definition of the crimes charged under 21 U.S.C. § 846
and 18 U.S.C. § 924(c).
factual support for Defendant's guilty plea, the
Government presented a factual basis. See Factual Basis
and Stipulation. In support, the Government and
Defendant stipulated that if this case were to proceed to
trial the Government would prove beyond a reasonable doubt,
through the sworn testimony of witnesses, including expert
witnesses, as well as through admissible exhibits, each and
every essential element of the crime charged in Counts One
and Four of the Indictment. The Government would also prove
that the defendant is one and the same person charged in the
Indictment and that the events described in Indictment
occurred in the Eastern District of Texas and elsewhere. The
Court incorporates the proffer of evidence described in
detail in the factual basis and stipulation in support of the
William Marlin Kirbow, agreed with and stipulated to the
evidence presented in the factual basis. Counsel for
Defendant and the Government attested to Defendant's
competency and capability to enter an informed plea of
guilty. The Defendant agreed with the evidence presented by
the Government and personally testified that he was entering
his guilty plea knowingly, freely and voluntarily.