UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cr-20172-GAYLES(s)

UNITED STATES OF AMERICA,

vs.

CLEVON WEBSTER, 

Defendant.

/

REPORT AND RECOMMENDATION ON 

CHANGE OF PLEA

THIS CAUSE is before the Court following an Order of Reference from the 

Honorable Darrin P. Gayles, United States District Judge, to conduct a proceeding for 

acceptance of a guilty plea by Defendant Clevon Webster (“Defendant”). [ECF No. 72]. 

Based upon the change of plea hearing conducted on February 8, 2023, the undersigned 

makes the following findings and recommends that the guilty plea be accepted.

1. The undersigned advised Defendant of his right to have these proceedings 

conducted by Judge Gayles, the District Judge assigned to the case, and that the undersigned

was conducting the change of plea hearing pursuant to an Order of Reference from Judge

Gayles. I further advised Defendant that Judge Gayles would be the sentencing judge and 

would make all findings and rulings concerning Defendant’s sentence. I advised Defendant 

that he did have the right to have the change of plea hearing conducted by Judge Gayles. 

Defendant, who stated that he had discussed his right to have the hearing conducted by the

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 1 of 6
2

District Judge with his attorney, and the Assistant United States Attorney consented on the

record to the undersigned conducting the change of plea hearing.

2. The plea colloquy was conducted in accordance with the outline set forth in

the Bench Book for District Judges and with Federal Rule of Criminal Procedure 11.

Defendant appeared personally in Court before the undersigned and was placed under oath.

3. The parties acknowledged that the plea agreement is a conditional plea and 

that pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Defendant 

reserves his right to appeal the Court’s Order affirming and adopting Magistrate Judge 

Torres’s Report and Recommendation on Defendant’s Motion to Dismiss and denying 

Defendant’s Motion to Dismiss. [ECF No. 54]. The parties agreed that this reservation of 

appellate rights is limited to the waiver-less information issue that Defendant raised in the 

Motion to Dismiss. See ECF No. 45. The parties agreed that should Defendant prevail on 

appeal, he shall be allowed to withdraw his plea of guilty to the Superseding Indictment. 

4. Defendant pled guilty to Counts 1 and 5 of the Superseding Indictment filed 

in this case, which charge him with the following violations: Title 18, United States Code, 

Section 1029(b)(2) (Conspiracy to Commit Access Device Fraud (to Possess Fifteen or 

More Unauthorized Access Devices)) (Count 1), and Title 18, United States Code, Section 

1028A(a)(1) (Aggravated Identity Theft) (Count 5). I advised Defendant that as to Count 1, 

the maximum penalty the Court may impose is a sentence of five (5) years’ imprisonment, 

followed by a term of supervised release of up to three (3) years. I also advised Defendant

that as to Count 5, the Court must impose a term of imprisonment of two (2) years, to run 

consecutively to any term of imprisonment imposed as to Count 1, followed by a term of 

supervised release of up to one (1) year, which may run concurrently to the term of 

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 2 of 6
3

supervised release imposed for Count 1. I further advised Defendant that in addition to any

term of imprisonment, the Court may impose a fine of up to the greater of $250,000 or twice 

the loss caused by the offenses, in addition to a mandatory special assessment of $100 per 

count, which is due at the time of sentencing. Defendant acknowledged that he understood 

the possible penalties, including the minimum and maximum penalties that could be

imposed in the case.

5. Defendant also acknowledged and agreed that restitution is mandatory, and 

stipulated that he owes restitution in the amount of s $22,109.00, jointly and severally with 

his co-conspirator, Lennoy Webster.

6. To set forth the factual basis for the entry of the plea, the Government

proffered the facts it would have established at trial. The Government established all the 

essential elements of the crimes to which Defendant is pleading guilty. Defendant 

acknowledged that the facts proffered by the Government were accurate, and defense 

counsel agreed that the proffer satisfied all elements of the crimes charged.

7. The parties had agreed to certain terms for Defendant’s plea and entered into 

a written plea agreement. I reviewed the terms agreed to by the parties on the record, 

including the following: Defendant will plead guilty to Counts 1 and 5 of the Superseding 

Indictment; the parties agree to a two-level reduction in Defendant’s base offense level

based upon Defendant’s recognition and affirmative and timely acceptance of personal 

responsibility; and the Government agrees that if at the time of sentencing Defendant’s

offense level is determined to be sixteen or greater, the Government will file a motion 

requesting an additional one-level decrease pursuant to Section 3E1.1(b) of the Sentencing 

Guidelines if Defendant fully cooperates with the probation office, is not found to have 

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 3 of 6
4

misrepresented facts to the government prior to entering into the plea agreement, and does

not commit any misconduct after entering into the plea agreement. 

8. The parties agreed that they will jointly recommend that the Court make the 

following findings as to the sentence to be imposed: that the relevant amount of actual, 

probable, or intended loss under Section 2b1.1(b)(1) of the Sentencing Guidelines resulting 

from the offense committed in this case is $52,466, resulting in a six-level increase; and that

the offense involved ten (10) or more victims, including ten (10) or more victims whose 

means of identification was used unlawfully or without authority, resulting in a two-level 

increase. The parties agreed that they remain free to argue for or against any other 

enhancement or adjustment, as well as for or against any variance under Title 18, United 

States Code, Section 3353. There were no other agreements regarding application of the 

Sentencing Guidelines or other enhancements or reductions that may be raised by the 

United States Probation investigation.

9. The parties notified the Court that as of the change of plea hearing they had

not identified any property subject to forfeiture in this case, but that Defendant will 

cooperate fully with the Government in the identification of assets subject to forfeiture.

Defendant waived all defenses to the forfeiture, including excessive fines under the Eighth 

Amendment to the United States Constitution. Based on Defendant’s acknowledgment and 

agreement at the hearing, the undersigned finds that Defendant’s waiver of all defenses to 

forfeiture in this case is knowing and voluntary. 

10. Defendant agreed that he waived his right to appeal his sentence unless the 

government files an appeal and/or his sentence exceeds the maximum permitted by statute 

and/or is the result of an upward departure or a variance from the guideline range that the 

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 4 of 6
5

Court establishes at sentencing. Based upon the Defendant’s acknowledgement and 

responses to my questions during the hearing, the undersigned finds that Defendant’s 

waiver of his right to appeal his sentence in this case is knowing and voluntary

11. Defendant acknowledged that he is satisfied with his attorney and that he has 

had a full opportunity to discuss all facets of his case with his attorney. Defendant also 

indicated that he has reviewed discovery with counsel and discussed possible defenses he 

may have to the charges against him.

12. Based upon all of the foregoing and the plea colloquy conducted by this 

Court, the undersigned finds 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 and voluntary plea supported by an 

independent basis in fact containing each of the essential elements of the offenses.

13. Therefore, the undersigned recommends that Defendant be found to have 

freely and voluntarily entered his guilty plea to Counts 1 and 5 of the Superseding 

Indictment filed in this case, as more particularly described herein, and that Defendant be 

adjudicated guilty of the offenses as charged.

14. A pre-sentence investigation report is being prepared for the District Court 

by the United States Probation Office. Sentencing before Judge Gayles will be set by a 

separate order. 

15. The parties will have five (5)

1 calendar days from the date of this Report to 

file written objections, if any, for consideration by the United States District Judge. 

1 At the Change of Plea Hearing before the undersigned, the parties did not object to 

shortening the amount of time to file written objections.

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 5 of 6
6 

Pursuant to Federal Rule of Criminal Procedure 59(b), Eleventh Circuit Rule 3-1, and 

accompanying Internal Operating Procedure 3, the parties are hereby notified that failure 

to object in accordance with 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal 

the District Court’s order based on unobjected-to factual and legal conclusions. See Thomas 

v. Arn, 474 U.S. 140, 155 (1985).

RESPECTFULLY SUBMITTED in Chambers at Miami, Florida, this 8th day of 

February 2023. 

_________________________________________

MELISSA DAMIAN

UNITED STATES MAGISTRATE JUDGE

Copies to: 

Hon. Darrin P. Gayles 

Counsel of Record

Case 1:20-cr-20172-DPG Document 79 Entered on FLSD Docket 02/08/2023 Page 6 of 6