1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

UNITED STATES OF AMERICA 

 vs. Criminal Action 2:17-cr-198 

 JUDGE GEORGE C. SMITH 

JOHN J. KERIN 

REPORT AND RECOMMENDATION 

 Defendant John J. Kerin was charged by complaint with violating 

the gun laws of the United States. Criminal Complaint, ECF No. 1. 

Following Defendant’s arrest, the Court granted his counsel’s motion 

to determine Defendant’s competency. Order, ECF No. 11 (sealed). A 

psychological evaluation was thereafter performed pursuant to 18 

U.S.C. §§ 4241, 4247 and the psychologist’s report, in which the 

examining psychologist opined that Defendant is competent, was filed. 

Psychological Evaluation, ECF No. 13 (sealed). A competency hearing 

was held on September 29, 2017, at which Defendant was present with 

his counsel. At that hearing, all parties agreed with the 

psychologist’s conclusion and neither party offered additional 

evidence or argument in connection with the issue of competency. 

 Furthermore, on September 13, 2017, the United States and 

Defendant entered into a plea agreement1

 whereby Defendant agreed to 

enter a plea of guilty to Count 1 of the Information, which charges 

him with being a felon in possession of a firearm, in violation of 18 

U.S.C. §§ 922(g), 924.2

 On September 29, 2017, Defendant, accompanied 

by his counsel, appeared for an arraignment and entry of a guilty 

plea. After first conducting the competency hearing referred to supra, 

the undersigned concluded, by a preponderance of the evidence, that 

Defendant is competent to enter a guilty plea. 

 1 The Plea Agreement, ECF No. 15, was executed pursuant to the 

provisions of Fed. R. Crim. P. 11(c)(1)(C) and includes an appellate waiver 

provision. 2 The Information, ECF No. 14, also contains a forfeiture count. 
 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 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. 

 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 charge in the Information

and the consequences of the plea to that charge. 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 September 13, 2017, represents the 

only promises made by anyone regarding the charge in the Information. 

Defendant was advised that the District Judge may accept or reject the 

plea agreement. Defendant was further advised that, if the Court 

refuses to accept the plea agreement, Defendant will have the 

opportunity to withdraw his guilty plea but that, if he does not 
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withdraw his guilty plea, the District Judge may impose a sentence 

that is more severe than the sentence contemplated in the plea 

agreement. 

 Defendant confirmed the accuracy of the material aspects of the 

statement of facts supporting the charge, most of which is attached to 

the Plea Agreement.3

 He confirmed that he is pleading guilty to Count 

1 of the Information because he is in fact guilty of that offense. 

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 Information is knowingly and voluntarily made with understanding 

of the nature and meaning of the charge and of the consequences of the 

plea. 

 It is RECOMMENDED that the Court find, by a preponderance of the 

evidence, that Defendant has sufficient mental competency to waive his 

constitutional rights in entering a guilty plea, to make a reasoned 

choice among the alternatives presented to him, and to understand the 

nature and consequences of the guilty plea. 

 It is further RECOMMENDED that Defendant’s guilty plea to Count 1 

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. 

 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 

 3 Defendant agreed, in addition to the facts contained in the Statement 

of Facts (PageID# 34), that the firearm was manufactured outside the State of 

Ohio and was transported across state lines, and that the offense occurred on 

May 26, 2016, as alleged in the Information. 
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). 

September 29, 2017 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge