IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 2:13-CR-161

Judge George C. Smith

Magistrate Judge Elizabeth P. Deavers

MARIO MORALES-MONZALVO,

Defendant.

REPORT AND RECOMMENDATION

The United States of America and Defendant Mario Morales-Monzalvo, 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 May 13, 2013, 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). 

Defendant waived his right to an Indictment in open court and after being advised of the nature of

the charge and of his rights. See Fed. 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

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 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 July 24, 2013 represents the only promises made to

him by anyone regarding the charge in the Information. The undersigned specifically addressed

those provisions of the plea agreement regarding the agreed sentence under Federal Rule of Criminal

Procedure 11(c)(1)(C) and waivers of his right to appeal the Court’s judgment against him; the

imposition of a sentence; to collaterally attack his conviction and sentence under 28 U.S.C. § 2255;

and any other means of collateral attack under a habeas corpus. Defendant was advised that the

District Judge may accept or reject the plea agreement or any term therein. 

The undersigned advised Defendant the Court will defer its decision to accept or reject the

plea agreement until the Court has an opportunity to consider the presentence report but that, if the

Court chooses not to follow the terms of the plea agreement and rejects it, Defendant will have an

opportunity to withdraw his plea of guilty. The undersigned cautioned Defendant that, if he chooses

not to withdraw his plea of guilty, the Court may impose a more severe sentence and dispose of the

case less favorably than his current plea agreement contemplates, and could, in fact, impose any

sentence up to the statutory maximum set forth for the offense to which he pleaded guilty.

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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 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. 

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 Mario Morales-Monzalvo’s guilty plea

to Count One of the Information be accepted. As noted above, Defendant was advised that the

decision on acceptance or rejection of the plea agreement will be 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 on an expedited basis. 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); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b). 

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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 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: July 30, 2013 s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE 

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