IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Criminal Action 2:12-cr-74(2)

Judge Graham

VICTOR H. DURAN-GAMBOA

REPORT AND RECOMMENDATION

The United States of America and defendant Victor H. DuranGamboa entered into a plea agreement whereby defendant agreed to enter

a plea of guilty to Count One of the Indictment charging him with

conspiracy to possess with intent to distribute and to distribute over

100 kilograms of marijuana, a Schedule I controlled substance, in

violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b0(1)(B)(vii). On October

10, 2012, defendant, accompanied by counsel and assisted by an

interpreter, appeared for a change of 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]; 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, at the time the guilty

plea was entered, defendant was in full possession of defendant’s

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

defendant personally and in open court and determined defendant’s

competence to plead. Based on the observations of the undersigned,

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defendant understands the nature and meaning of the charge in Count One

of the Indictment and the consequences of the 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 agreed to by defendant, defendant’s attorney and

the attorney for the United States and filed on October 10, 2012, Amended

Plea Agreement, Doc. No. 89, represents the only promises made by anyone

regarding the charge in Count One of 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 the guilty plea. 

Defendant confirmed the accuracy of the material aspects of

the statement of facts supporting the charge. Defendant confirmed that

he is pleading guilty to Count One of the Indictment because he is in

fact guilty of the offense charged in Count One of 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

understanding of the nature and meaning of the charge and of the

consequences of the plea. 

It is therefore RECOMMENDED that defendant Victor H. DuranGamboa’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, and as expressly

agreed to by defendant through counsel, a written presentence

investigation report will be prepared by the United States Probation

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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. 

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 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).

October 10, 2012 s/ Norah McCann King 

 Date Norah McCann King

 United States Magistrate Judge

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