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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 2:14-cr-289(8) 

 Judge Smith KYLE M. IRVIN 

 REPORT AND RECOMMENDATION 

 The United States of America and defendant Kyle M. Irvin entered 

into a plea agreement whereby defendant agreed to enter a plea of 

guilty to Count 1 of the Second Superseding Indictment, which charges 

him with conspiracy to possess with intent to distribute heroin in 

violation of 21 U.S.C. § 846. On January 16, 2015, defendant, 

accompanied by his counsel, 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. 

 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 

Second Superseding Indictment and the consequences of the plea to 

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Count 1 of the Second Superseding Indictment. 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 January 8, 2015, represents the 

only promises made by anyone regarding the charges in the Second 

Superseding 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 1 of the Second Superseding Indictment

because he is in fact guilty of the offense charged in Count 1 of the 

Second Superseding Indictment. The Court concludes that there is a 

factual basis for the plea. 

 The Court concludes that defendant’s plea of guilty to Count 1 of 

the Second Superseding 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’s guilty plea to Count 

1 of the Second Superseding 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 

Office. Defendant will be asked to provide information; defendant’s 

attorney may be present if defendant so wishes. Objections to the 

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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). 

January 16, 2015 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge

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