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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

UNITED STATES OF AMERICA,




v.

JACK FRANCIS GIBBINS,
Defendant.

Criminal Action No. 2:13CR22

ORDER/OPINION REGARDING PLEA OF GUILTY

This matter has been referred to the undersigned Magistrate Judge by the District Court for

purposes of conducting proceedings pursuant to Federal Rule of Criminal Procedure 11. Defendant,

Jack Francis Gibbons, in person and by counsel, Katy J. Cimino, appeared before me on September

20, 2013. The Government appeared by Stephen Warner, its Assistant United States Attorney.

The Court determined that Defendant was prepared to enter a plea of “Guilty” to Count One

of the Indictment. Thereupon, the Court proceeded with the Rule 11 proceeding by first placing

Defendant under oath. The Court then determined that Defendant’s plea was pursuant to a written

plea agreement, and asked the Government to tender the original to the Court. The Court then asked

counsel for the Government to summarize the written Plea Agreement. Defendant then stated that

the agreement as summarized by counsel for the Government was correct and complied with his

understanding of the agreement. Counsel stated that the plea agreement was the second offer made

to the defendant. The first had a different stipulated amount and the second agreement was more

favorable to Defendant. Counsel for Defendant advised that she discussed both offers with Defendant

and agreed the second agreement was more favorable to Defendant The Court ORDERED the

written Plea Agreement filed.

The Court next inquired of Defendant concerning his understanding of his right to have an

Article III Judge hear the entry of his guilty plea and his understanding of the difference between an

Article III Judge and a Magistrate Judge. Defendant thereafter stated in open court that he voluntarily

waived his right to have an Article III Judge hear and accept his plea and voluntarily consented to the

undersigned Magistrate Judge hearing and accepting his plea, and tendered to the Court a written

Waiver of Article III Judge and Consent To Enter Guilty Plea Before Magistrate Judge, which

waiver and consent was signed by Defendant and countersigned by Defendant’s counsel and was

concurred in by the signature of the Assistant United States Attorney appearing.

Upon consideration of the sworn testimony of Defendant, as well as the representations of

his counsel and the representations of the Government, the Court finds that the oral and written

waiver of Article III Judge and consent to enter guilty plea before a Magistrate Judge was freely and

voluntarily given and the written waiver and consent was freely and voluntarily executed by

Defendant, Jack Francis Gibbins, only after having had his rights fully explained to him and having

a full understanding of those rights through consultation with his counsel, as well as through

questioning by the Court. The Court ORDERED the written Waiver and Consent to Enter Guilty

Plea before a Magistrate Judge filed and made part of the record.

The undersigned then reviewed with Defendant Count One of the Indictment and the elements

the government would have to prove, charging him with distribution of heroin.

The undersigned then reviewed with Defendant the statutory penalties applicable to an

individual adjudicated guilty of the felony charge contained in Count One of the Indictment, the

impact of the sentencing guidelines on sentencing in general, and inquired of Defendant as to his

competency to proceed with the plea hearing. From said review the undersigned Magistrate Judge

determined Defendant understood the nature of the charge pending against him and understood the

possible statutory maximum sentence which could be imposed upon his conviction or adjudication

of guilty on that charge was imprisonment for a term of not more than twenty (20) years; understood

that a fine of not more than $1,000,000.00 could be imposed; understood that both fine and

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imprisonment could be imposed; understood he would be subject to a period of up to three (3) years

of supervised release; and understood the Court would impose a special mandatory assessment of

$100.00 for the felony conviction payable on or before the date of sentencing. He also understood

that his sentence could be increased if he had a prior firearm offense, violent felony conviction, or

prior drug conviction. He also understood he might be required by the Court to pay the costs of his

incarceration and supervised release.

The undersigned also reviewed with Defendant his conditional waiver of appellate rights as

follows:

Ct:

Did you discuss with Miss Cimino and do you understand from that discussion that you have

a right to appeal your conviction and your sentence to the Fourth Circuit Court of Appeals

provided you give notice of your intent to appeal within 14 days of your sentencing?

Def: Yes, sir.

Ct:

Did you also discuss with Miss Cimino and do you understand from that discussion that you

may collaterally attack or challenge your sentence and how it was calculated by filing a

motion under 28 U.S.C. Section 2255, commonly call a habeas motion?

Def: Yes, sir.

Ct:

Did you understand that under paragraph 13 of your written plea agreement, that if the

United States District Judge sentences you to an actual sentence that is the same as or equal

to a guideline calculated sentence using a total offense level of 16 or lower, you give up

your right to directly appeal and you give up your right to collaterally attack or challenge

your sentence and how it was calculated by using a writ of habeas corpus?

Def: Yes, sir.

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Ct:

And that’s what you intended to do by signing the written plea agreement with that paragraph

in it?

Def: Yes, sir.

Ct:

And you fully understood that paragraph and what you were giving up when you signed it?

Def: Yes, sir.

From the foregoing colloquy the undersigned determined that Defendant understood his

appellate rights and knowingly gave up those rights pursuant to the condition contained in the written

plea bargain agreement.

The undersigned Magistrate Judge further examined Defendant relative to his knowledgeable

and voluntary execution of the written plea bargain agreement signed by him on September 10, 2013,

and determined the entry into said written plea bargain agreement was both knowledgeable and

voluntary on the part of Defendant. The undersigned then inquired of Defendant regarding his

understanding of the written plea agreement. Defendant stated he understood the terms of the written

plea agreement and also stated that it contained the whole of his agreement with the Government and

no promises or representations were made to him by the Government other than those terms

contained in the written plea agreement. The Court inquired and Defendant stated that his counsel

did not promise a specific sentence. He further understood that neither his counsel nor anyone else

could promise him a specific sentence, and he could not rely on such a promise if made.

The undersigned Magistrate Judge further inquired of Defendant, his counsel, and the

Government as to the non-binding recommendations and stipulation contained in the written plea

bargain agreement and determined that Defendant understood, with respect to the plea bargain

agreement and to Defendant’s entry of a plea of guilty to the felony charge contained in Count One

of the Indictment, the undersigned Magistrate Judge would write the subject Order and would further

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order a pre-sentence investigation report be prepared by the probation officer attending the District

Court. The undersigned advised the Defendant that the District Judge would adjudicate the Defendant

guilty of the felony charged under Count One of the Indictment. Only after the District Court had

an opportunity to review the pre-sentence investigation report, would the District Court make a

determination as to whether to accept or reject any recommendation or stipulation contained within

the plea agreement or pre-sentence report. The undersigned reiterated to the Defendant that the

District Judge may not agree with the recommendations or stipulation contained in the written

agreement. The undersigned Magistrate Judge further advised Defendant, in accord with Federal

Rule of Criminal Procedure 11, that in the event the District Court Judge refused to follow the non-

binding recommendations or stipulation contained in the written plea agreement and/or sentenced him

to a sentence which was different from that which he expected, he would not be permitted to

withdraw his guilty plea. The Court also advised Defendant regarding the United States’ agreement

to recommend that the Court’s sentencing Order include a recommendation that Defendant participate

in the Bureau of Prisons RDAP. The Court advised that even if the United States did make that

recommendation, the Court was not bound to follow it, and that even if the Court did make that

recommendation the Bureau of Prisons was not bound to follow that recommendation. Defendant and

his counsel each acknowledged their understanding and Defendant maintained his desire to have his

plea of guilty accepted.

Defendant also understood that his actual sentence could not be calculated until after a pre-

sentence report was prepared and a sentencing hearing conducted. The undersigned also advised,

and Defendant stated that he understood, that the Sentencing Guidelines are no longer mandatory,

and that, even if the District Judge did not follow the Sentencing Guidelines or sentenced him to a

higher sentence than he expected, he would not have a right to withdraw his guilty plea. Defendant

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further understood there was no parole in the federal system, although he may be able to earn

institutional good time, and that good time was not controlled by the Court, but by the Federal Bureau

of Prisons.

Defendant also understood that while his counsel could use the chart to help him understand

how the guidelines are used, he cannot take that as a promise or guarantee that the District Judge

would see it the same way and impose a sentence consistent with what he had been told by counsel.

Thereupon, Defendant, Jack Francis Gibbins, with the consent of his counsel, Katy J. Cimino,

proceeded to enter a verbal plea of GUILTY to the felony charge contained in Count One of the

Indictment.

The Court heard the testimony of Hardy County Sheriff’s Deputy Short, who testified he was

involved in the investigation of Defendant. On June 20, 2012, he arranged a meeting between a

confidential informant (“CI”), Chief Dyer of the Hardy County Drug Task Force (acting in an

undercover capacity), and Defendant. The meeting was for the CI to purchase heroin from Defendant.

The meeting place was the movie theatre parking lot in Moorefield, Hardy County, West Virginia.

Chief Dyer went with the CI to the arranged meeting place. Defendant was seated in the passenger seat

of a vehicle. The CI and Chief Dyer approached him. Chief Dyer then purchased 5 heroin caps for

$500.00. Defendant handed the heroin to Chief Dyer. The transaction was video and audio recorded,

as well as being monitored by other undercover officers. The substance was confirmed as heroin by

laboratory testing.

Defendant stated he heard and understood Deputy Short’s testimony, but that he did not really

remember that particular day. He had seen the video and heard the audio tapes showing him that day.

He did not dispute the officer’s testimony. The undersigned finds Deputy Short’s testimony provides

an independent factual basis in support of Defendant’s guilty plea.

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Upon consideration of all of the above, the undersigned Magistrate Judge finds that Defendant

is fully competent and capable of entering an informed plea; Defendant is aware of and understood

his right to have an Article III Judge hear and accept his plea and elected to voluntarily consent to

the undersigned United States Magistrate Judge hearing and accepting his plea; Defendant understood

the charges against him, not only as to the Indictment as a whole, but in particular as to Count One

of the Indictment; Defendant understood the consequences of his plea of guilty, in particular the

maximum statutory penalty to which he would be exposed; Defendant made a knowing and

voluntary plea of guilty to Count One of the Indictment; and Defendant’s plea is independently

supported by the testimony of Deputy Short, which provides, beyond a reasonable doubt, proof of

each of the essential elements of the charge to which Defendant has pled guilty.

The undersigned Magistrate Judge therefore ACCEPTS Defendant’s plea of guilty to the

felony charge contained Count One of the Indictment and recommends he be adjudged guilty on said

charge as contained in Count One of the Indictment and have sentence imposed accordingly.

The undersigned further directs that a pre-sentence investigation report be prepared by the

adult probation officer assigned to this case.

Defendant is continued on release under the Conditions of Pretrial Release previously entered

by the Court as modified to add a pill count for his prescription medications; to advise his pretrial

services officer of his use of Suboxone; and to take his prescription medications only as prescribed.

The Clerk of the Court is directed to send a copy of this Order to counsel of record.

It is so ORDERED.

DATED: 20 September 2013.

s/]É{Ç fA ^tâÄÄ
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE

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