1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

UNITED STATES OF AMERICA 

 vs. Criminal Action 2:17-cv-236 

 JUDGE JAMES L. GRAHAM 

FILADELFO BAUTISTA-LOPEZ 

 

REPORT AND RECOMMENDATION 

 The United States of America and defendant Filadelfo BautistaLopez entered into a plea agreement, whereby defendant agreed to enter 

a plea of guilty to an Information charging him with the unlawful 

reentry into the United States in violation of 8 U.S.C. 1326(a).1

 On 

November 2, 2017, defendant, accompanied by his counsel and with the 

assistance of a Spanish interpreter, appeared for an arraignment and 

guilty 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). 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). 

 1 The original Plea Agreement, Doc. 4, refers to Rule 11(c)(1)(B) of the 

Federal Rules of Criminal Procedure. However, the parties agree that the 

Court is not bound by the parties’ stipulation as to the application of the 

Sentencing Guidelines; moreover, defendant has agreed to the deletion of ¶ 14 

of the original Plea Agreement and understands that he will be bound by his 

guilty plea even if the sentence imposed is more severe than the sentence he 

was expecting. See Amended Plea Agreement, Defendant’s Exhibit 1. The plea 

agreement also contains an appellate waiver provision and contemplates the 

completion of the presentence report on an accelerated basis. 
 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 October 6, 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 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 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. 
3 

 It is therefore 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 on an accelerated basis. 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). 

November 2, 2017 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge