United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE
REPORT AND RECOMMENDATION
MCCANN KING, UNITED STATES MAGISTRATE JUDGE.
Juan Carlos Cabrales-Esparza is charged in an
Indictment with conspiracy to distribute and to
possess with intent to distribute marijuana and more than 100
grams of heroin in violation of 21 U.S.C. §§ 846,
841(b)(1)(B)(i) (Count 1), and illegal reentry into the
United States in violation of 8 U.S.C. § 1326(a) (1)
(Count 2). The United States and defendant entered into a
plea agreement, executed pursuant to the provisions of Rule
11(c)(1)(A) of the Federal Rules of Criminal Procedure,
whereby defendant agreed to enter a plea of guilty to both
counts. On January 11, 2018, defendant,
accompanied by his counsel and with the assistance of a
Spanish interpreter, appeared for a change of plea
proceeding. Defendant consented, pursuant to 28 U.S.C.
§636(b)(3), to enter a guilty plea before a Magistrate
Judge. See United States v. Cukaj, 2001 WL 1587410
at *1 (6th Cir. 2001) (Magistrate Judge may accept
a guilty plea with the express consent of the defendant and
where no objection to the report and recommendation is
the plea proceeding, the undersigned observed the appearance
and responsiveness of defendant in answering questions. Based
on that observation, the undersigned is satisfied that, at
the time he entered his guilty pleas, defendant was in full
possession of his faculties, was not suffering from any
apparent physical or mental illness, and was not under the
influence of narcotics or alcohol.
to accepting defendant's pleas, the undersigned addressed
defendant personally and in open court and determined his
competence to plead. Based on the observations of the
undersigned, defendant understands the nature and meaning of
the charges in the Indictment and the consequences
of his pleas of guilty to those charges. Defendant was also
addressed personally and in open court and advised of each of
the rights referred to in Rule 11 of the Federal Rules of
engaged in the colloquy required by Rule 11, the Court
concludes that defendant's pleas are voluntary. Defendant
acknowledged that the plea agreement signed by him, his
attorney and the attorney for the United States and filed on
November 22, 2017, represents the only promises made by
anyone regarding the charges in the Indictment.
Defendant was advised that the District Judge may accept or
reject the plea agreement and that, even if the Court refuses
to accept any provision of the plea agreement not binding on
the Court, defendant may nevertheless not withdraw his guilty
confirmed the accuracy of the statement of facts supporting
the charge, which is attached to the Plea
Agreement. He confirmed that he is pleading guilty to
Counts 1 and 2 of the Indictment because he is in
fact guilty of those offenses. The Court concludes that there
is a factual basis for the pleas.
Court concludes that defendant's pleas of guilty to
Counts 1 and 2 of the Indictment are knowingly and
voluntarily made with understanding of the nature and meaning
of the charges and of the consequences of the pleas.
therefore RECOMMENDED that defendant's
guilty pleas to Counts 1 and 2 of the Indictment be
accepted. Decision on acceptance or rejection of the plea
agreement was deferred for consideration by the District
Judge after the preparation of a presentence investigation
accordance with S.D. Ohio Crim. R. 32.1, and as expressly
agreed to by defendant through counsel, a written presentence
investigation report will be prepared by the United States
Probation Office. Defendant will be asked to provide
information; defendant's attorney may be present if
defendant so wishes. Objections to the presentence report
must be made in accordance with the rules of this Court.
party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14)
days, file and serve on all parties objections to the
Report and Recommendation, specifically designating
this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28
U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to
objections must be filed within fourteen (14) days after
being served with a copy thereof. F.R. Civ. P. 72(b).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a
waiver of the right to de novo review by the
District Judge and of the right to appeal the decision of the
District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v.
Detroit Federation of Teachers, Local 231 etc., 829 F.2d
1370 (6th Cir. 1987); United States v. Walters, 638
F.2d 947 (6th Cir. 1981).