United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY JUDGE.
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge.
Keith D. Smith is charged in a Superseding
Indictment with one count of being a felon in possession
of a firearm in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2) (Count 2). Superseding
Indictment, ECF No. 33. The Superseding
Indictment also contains a forfeiture count.
Id. The United States of America and defendant have
entered into a Superseding Plea Agreement, ECF No.
35, executed pursuant to the provisions of Rule 11(c)(1)(C)
of the Federal Rules of Criminal Procedure,  whereby defendant
agreed to enter a plea of guilty to that charge.
Superseding Plea Agreement, ECF No. 35. On July 24,
2019, defendant, accompanied by his counsel, 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).
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 against him in the Superseding Indictment
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 Criminal Procedure.
engaged in the colloquy required by Rule 11, the Court
concludes that defendant's plea is voluntary. Defendant
acknowledged that the Superseding Plea Agreement
signed by him, his attorney and the attorney for the United
States and filed on July 24, 2019, represents the only
promises made by anyone regarding the charge against him in
the Superseding Indictment. 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 maximum.
confirmed the accuracy of the statement of facts supporting
the charge against him, which is attached to the
Superseding Plea Agreement. He confirmed that he is
pleading guilty to Count 2 of the Superseding
Indictment 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
2 of the Superseding Indictment 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 2 of the Superseding 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).