United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge
United States of America and defendant Noe Garcia-Bautista
entered into a plea agreement whereby defendant agreed to enter
a plea of guilty to Count 1 of the Information,
which charges him with the illegal re-entry into the United
States in violation of 8 U.S.C. § 1326(a).
Information, ECF No. 13. On June 12, 2019,
defendant, accompanied by his counsel and assisted by a
Spanish translator, appeared for an arraignment and entry of
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 plea, 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 drugs or alcohol.
to accepting defendant's plea, 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 charge in the Information and the consequences
of his plea of guilty to that charge. 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 plea is voluntary. Defendant
acknowledged that the plea agreement signed by him, his
attorney and the attorney for the United States and filed on
May 16, 2019, represents the only promises made by anyone
regarding the charge in the Information. Defendant
was advised that the District Judge may accept or reject the
plea agreement. Defendant was further advised that, if the
Court refuses to accept the plea agreement, defendant will
have the opportunity to withdraw his guilty plea but that, if
he does not withdraw his guilty plea, the District Judge may
impose a sentence that is more severe than the sentence
contemplated in the plea agreement, up to the statutory
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 Count 1 of the
Information because he is in fact guilty of that
offense. The Court concludes that there is a factual
basis for the plea.
Court concludes that defendant's plea of guilty to Count
1 of the Information is knowingly and voluntarily
made with understanding of the nature and meaning of the
charge and of the consequences of the plea.
therefore RECOMMENDED that defendant's
guilty plea to Count 1 of the 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
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).