Investigative Agency and Victim to be Consulted Charlesworth, 217 F.3d 1155, 1160 (9th Cir.2000) (discussing general principles related to use of hearsay in sentencing).Approval Required for Consent to Plea of Nolo ContendereĪpproval Required for Consent to Alford PleaĪpproval Required for Plea Agreements Involving Members of Congress, Federal Judges, Extradition, Deportation, and Air Piracy Cases 9 (9th Cir.2002) ("We permit reliance on hearsay statements in a presentence report under a preponderance of the evidence determination for sentencing purposes.") United States v. United States, 483 F.2d 1182, 1190 (9th Cir.1973) (Choy, J., concurring), notwithstanding the fact that presentence reports commonly include hearsay. The court may rely on presentence reports in determining the factual basis for a plea, Burton v. When determining the factual basis of a plea, it is recognized that "he rule prescribes no specific method of establishing the factual basis." United States v. In a preliminary hearing, "probable cause may be based upon hearsay evidence in whole or in part." Fed.R.Crim.P. However, "he court need not be convinced beyond a reasonable doubt that an accused is guilty." Id. The issue when determining the factual basis for a plea is whether there is sufficient evidence to justify a conclusion that the defendant committed the charged offense. The issue at a preliminary hearing is whether there is probable cause to believe that a crime was committed and that the defendant committed it See Fed.R.Crim.P. On top of all that, at any time prior to sentencing, a defendant can make a motion before a district judge to withdraw his guilty plea for "any fair and just reason." See Fed. Defendants therefore have not one, not two, but three opportunities to correct any perceived deficiencies resulting from Rule 11 proceedings over which magistrate judges have presided. 7 And, third, defendants have an absolute right to withdraw guilty pleas taken by magistrate judges at any time before they are accepted by the district court. Second, even if defendants consent to proceed before magistrate judges, they may file objections to the magistrate judge's proposed findings and recommendations, thereby triggering de novo review.
Rule 11 colloquy free#
First, defendants are free not to consent to having a magistrate judge administer the colloquy. Our conclusion is further supported by three levels of procedural safeguards inhering within existing practice. 7 ("Even though the Magistrates Act does not expressly provide for de novo review of plea proceedings, the only constitutional requirement is that it be available if the parties so request."). 2661 (clarifying that de novo review not required for Article III purposes unless requested by the parties) Dees, 125 F.3d at 268 n. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding.") see also Peretz, 501 U.S. Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.
As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S.
The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.
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