United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM, JUDGE.
REPORT AND RECOMMENDATION
McCann King, United States Magistrate Judge.
Bital El-Yousseph is charged in a Superseding
Information with one count of conspiracy to distribute
and to possess with intent to distribute controlled
substances (Count 1), and one count of brandishing or using a
firearm in connection with the drug trafficking activity
charged in Count 1 (Count 2). Superseding
Information, ECF No. 24. The Superseding
Information also contains a forfeiture count by which
the United States seeks to forfeit any interest that
defendant may have in three firearms, ammunition and
previously pleaded guilty to those charges pursuant to a plea
agreement, see Order, ECF No. 31, but was permitted
to withdraw his guilty plea in light of the First Step Act of
2018. Order, ECF No. 34. The United States and
defendant thereafter entered into a new plea agreement,
whereby defendant again agreed to enter a plea of guilty to
both counts, but which gives defendant the benefit of the
First Step Act changes. Plea Agreement, ECF No.
On June 12, 2019, defendant, accompanied by his counsel,
appeared for another 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 charges 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 charges in the Superseding Information and the
consequences of his plea 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 Criminal Procedure.
engaged in the colloquy required by Rule 11, the Court
concludes that defendant's plea is voluntary. Defendant
acknowledged that the new plea agreement signed by him, his
attorney and the attorney for the United States and filed on
May 8, 2019, 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. 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 maximums.
confirmed the accuracy of the statement of facts supporting
the charge, which is attached to the new plea agreement. He
confirmed that he is pleading guilty to Counts 1 and 2 of the
Superseding Information because he is in fact guilty
of those offenses. The Court concludes that there is
a factual basis for the plea.
Court concludes that defendant's plea of guilty to Counts
1 and 2 of the Superseding Information is knowingly
and voluntarily made with understanding of the nature and
meaning of the charges and of the consequences of the plea.
therefore RECOMMENDED that defendant's
guilty plea to Counts 1 and 2 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.
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