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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Criminal Action 2:12-cr-155(2)

Judge Smith

CARLOS ANTONIO AGUIAR

REPORT AND RECOMMENDATION

The United States of America and defendant Carlos Antonio 

Aguiar entered into a plea agreement whereby defendant agreed to enter 

a plea of guilty to Count One of an indictment charging him with

possession with intent to distribute 1,000 grams or more of heroin in 

violation of 21 U.S.C. § 846. On July 9, 2013, defendant, accompanied 

by his 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 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. 

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Prior 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 charges returned in the 

Indictment and the consequences of the plea of guilty to Count One. 

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 June 18, 2013 represents the only 

promises made by anyone regarding the charges 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 

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 that count. 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 Carlos Antonio 

Aguiar’s guilty plea to Count One of the Indictment be accepted. 

Decision on acceptance or rejection of the plea agreement was deferred 

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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 

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).

 s/ Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

July 9, 2013

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