IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 2:11-CR-171(02)

Judge James L. Graham

Magistrate Judge E. A. Preston Deavers

JUAN GUTIERREZ,

Defendant.

REPORT AND RECOMMENDATION

The United States of America and Defendant Juan Gutierrez entered into a plea agreement

whereby Defendant agreed to enter a plea of guilty to an Indictment charging him with conspiracy

to distribute and to possess with intent to distribute more than one thousand (1,000) kilograms of

marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii) and § 846. On February 22,

2012, Defendant, accompanied by his counsel, appeared for a hearing to withdraw his previously

entered plea of not guilty and to change his plea to guilty. 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);

United States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261,

263-69 (5th Cir. 1997); United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir. 1996). 

During the plea proceeding, the undersigned observed the appearance and responsiveness

of Defendant in answering questions. Based on that observation, the undersigned is satisfied that,

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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

narcotics or alcohol. 

Prior to accepting Defendant’s plea, the undersigned addressed him 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 returned in the Indictment and the

consequences of his plea. 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. 

Having 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 February 14, 2012, represents the only

promises made to him by anyone regarding the charge in the Indictment. 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 plea. 

Defendant confirmed the accuracy of the material aspects of the investigating officer's

statement of facts supporting the charge. He confirmed that he is pleading guilty to Count One

of the Indictment because he is in fact guilty of the offense charged in the Indictment. The Court

concludes that there is a factual basis for the plea. 

The Court concludes that Defendant’s plea of guilty to Count One of the Indictment is

knowingly and voluntarily made with the understanding of the nature and meaning of the charge

and of the consequences of his plea. 

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It is therefore RECOMMENDED that Defendant Juan Gutierrez’s guilty plea to Count

One of the 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

report. 

In accordance with S.D. Ohio Crim. R. 32.1, a written presentence investigation report

will be prepared by the United States Probation Office. Defendant will be asked to provide

information and his attorney may be present if Defendant so wishes. Objections to the presentence

report must be made in accordance with the rules of this Court. 

If any 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). 

The parties are specifically advised that the 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

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

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review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

DATE: February 22, 2012 s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE 

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