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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-CR-20505-GAYLES/TORRES

UNITED STATES OF AMERICA,

vs. 

KEVIN ABARCA and 

JORGE PEREZ-DECESPEDES, 

Respondent.

_____________________________/ 

ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE

THIS CAUSE comes before the Court on Chief Magistrate Judge Edwin G. Torres’ Report 

and Recommendation on Defendant’s Count 13 Motions (the “Report”). [ECF No. 224]. Defendant 

Kevin Abarca (“Defendant”) filed three motions relating to Count 13 of the Superseding Indictment

(collectively the “Count 13 Motions”). [ECF Nos. 184, 186, 188].

1 The Count 13 Motions were fully 

briefed by the parties. [ECF Nos. 200, 202, 204, 216, 217, 218]. On January 31, 2024, the Count 13 

Motions were referred to Judge Torres for a report and recommendation. [ECF No. 209]. Judge 

Torres’ Report recommends that the Court grant the Motion to Sever Count 13 and deny both the 

Motion to Dismiss and the Motion to Strike. [ECF No. 224]. For Count 13, the Report recommends

that the Court either (1) try Count 13 separately from the remaining charges and redact the 

superseding indictment, or (2) bifurcate only the jury findings necessary to adjudicate the ACCAenhancement issue.2 Id. at 42. 

1 Motion to Dismiss Count Thirteen of the Superseding Indictment, [ECF No. 184], Motion to Sever Count 13 

(Misjoinder), [ECF No. 186], and Motion to Strike ACCA, [ECF No. 188]. 

2 A fifteen-year mandatory minimum sentence prescribed by the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

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The United States of America (the “Government”) filed its limited Objections to the Report

on March 4, 2024. [ECF No. 225]. Subsequently, Defendant filed his own Objections to the Report 

on March 7, 2024. [ECF No. 234]. A district court may accept, reject, or modify a magistrate 

judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and 

recommendation to which objection is made are accorded de novo review, if those objections 

“pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 

1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and 

recommendation to which no specific objection is made are reviewed only for clear error. Liberty 

Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 

2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). 

This Court, having conducted a de novo review of the record, agrees with Judge Torres’ 

well-reasoned analysis and conclusion that the Motion to Dismiss Count Thirteen of the 

Superseding Indictment and the Motion to Strike ACCA should be denied and that the Motion 

to Sever Count 13 should be granted in part. If at trial Defendant is found guilty of Count 13, the 

Court will bifurcate the jury’s determination of whether the ACCA-enhancement applies.

Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows:

(1) The United States’ Objections to Magistrate’s Report and Recommendation, [ECF 

No. 225], are AFFIRMED; 

(2) Defendant’s Objections to Report and Recommendation on Defendant’s Count 13 

Motions, [ECF No. 234], are OVERRULED;

(3) Chief Magistrate Judge Edwin G. Torres’ Report and Recommendation on 

Defendant’s Count 13 Motions, [ECF No. 224], is AFFIRMED AND ADOPTED 

and incorporated into this Order by reference; 

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(4) Defendant Kevin Abarca’s Motion to Dismiss Count Thirteen of the Superseding 

Indictment, [ECF No. 184], is DENIED;

(5) Defendant Kevin Abarca’s Motion to Strike ACCA, [ECF No. 188], is DENIED; 

and

(6) Defendant Kevin Abarca’s Motion to Sever Count 13 (Misjoinder), [ECF No. 186], 

is GRANTED in part.

DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of March, 2024. 

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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