IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 2:12-CR-222

Judge James L. Graham

Magistrate Judge Elizabeth P. Deavers

ANTONIO SANTIAGO RODRIGUEZ,

Defendant.

REPORT AND RECOMMENDATION

The United States of America and Defendant Antonio Santiago Rodriguez entered into a plea

agreement whereby Defendant agreed to enter a plea of guilty to an Information charging him with

illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a). On November 7, 2012,

Defendant, accompanied by his counsel, appeared for an arraignment. 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). 

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 F.R. Crim. P. 7(b). 

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,

at the time he entered his guilty plea, Defendant was in full possession of his faculties, was not

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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 Information 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 November 1, 2012 represents the only promises made

to him by anyone regarding the charge in the Information. Defendant was advised that the District

Judge may accept or reject the plea agreement1

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

concludes that there is a factual basis for the plea. 

1

In Paragraph 6 of the Plea Agreement, Defendant agrees to waive his right to appeal the

Court’s entry of judgment, the imposition of any sentence and any right to collaterally attack the

conviction or sentence under 28 U.S.C. § 2255. Upon inquiry by the Court, the Government

indicated that it negotiated this provision of the Agreement in exchange for its agreement under

U.S.S.G. § 5K3.1 to recommend a four-level departure under an early disposition program (“fast

track”). (See Plea Agmt., ¶ 11.c..) The undersigned indicated to the parties that she would

recommend acceptance of the Plea Agreement but made no representation as to whether the

District Judge would adopt it because of this waiver provision.

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

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

of the consequences of his plea. 

It is therefore RECOMMENDED that Defendant Antonio Santiago Rodriguez’s guilty plea

to Count One 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 report. 

A written presentence investigation report is in the process of being 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

3

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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 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: November 7, 2012 s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE 

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