United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge
Jason J. Delcol is charged in the Superseding
Information with conspiracy to possess with intent to
distribute controlled substances within 1, 000 feet of a
public elementary school in violation of 21 U.S.C.
§§ 846, 841, 860(a) (Count 1); witness tampering in
violation of 18 U.S.C. § 1512(b)(3)(Count 2); and
possession of an unregistered machinegun and silencer in
violation of 26 U.S.C. § 5861(d). The Superseding
Information also contains a forfeiture count.
Superseding Information, ECF No. 57. The United
States and defendant entered into a plea agreement, executed
pursuant to the provisions of Rule 11(c)(1)(B) of the Federal
Rules of Criminal Procedure, whereby defendant agreed to
plead guilty to these charges.On May 29, 2018, defendant,
accompanied by his counsel, appeared for an arraignment and
guilty 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 filed). Defendant also waived his right to
an indictment in open court and after being advised of the
nature of the charge and of his rights. See Fed. R.
Crim P. 7(b).
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 guilty 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 Superseding
Information and the consequences of his pleas of guilty.
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 Criminal Procedure.
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
May 18, 2018, represents the only promises made by anyone
regarding the charges in the Superseding
Information. 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 pleas.
confirmed the accuracy of the statement of facts supporting
the charges, which is attached to the Plea
Agreement. He confirmed that he is pleading guilty to
the charges contained in the Superseding Information
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, 2, and 3 of the Superseding Information
are knowingly and voluntarily made with understanding of the
nature and meaning of the charges and of the consequences of
therefore RECOMMENDED that defendant's
guilty pleas to Counts 1, 2, and 3 of the Superseding
Information 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 report.
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).