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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 2:17-cr-203(1) 

 JUDGE ALGENON L. MARBLEY 

DAVANTE M. HAYES 

REPORT AND RECOMMENDATION 

 Defendant Davante M. Hayes is charged in a Superseding Indictment

with two counts of being a felon in possession of firearms in 

violation of 18 U.S.C. §§ 922(g), 924(a) (Counts 1 and 3), and one 

count of possession with intent to distribute cocaine in violation of 

21 U.S.C. § 841 (Count 2). Superseding Indictment, ECF No. 19. The 

United States and defendant entered into a plea agreement, executed 

pursuant to the provisions of Rule 11(c)(1)(A) of the Federal Rules of 

Criminal Procedure, whereby defendant agreed to enter a plea of guilty 

to Count 1.1 On April 20, 2018, 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). 

 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 

 1 Under the Plea Agreement, ECF No. 26, defendant agreed to the 

forfeiture provision contained in the Indictment. The Plea Agreement also 

includes an appellate waiver provision which preserves only certain claims 

for appeal or collateral challenge. 
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 in the Superseding

Indictment and the consequences of his plea of guilty to Count 1 of 

the 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 February 28, 2018, represents the 

only promises made by anyone regarding the charges in the 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, which is attached to the 

Plea Agreement. He confirmed that he is pleading guilty to Count 1 of 

the Superseding Indictment 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 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 Superseding Indictment be accepted. Decision on acceptance 

or rejection of the plea agreement was deferred for consideration by 
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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). 

April 20, 2018 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge