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-266(4) 

 JUDGE ALGENON L. MARBLEY 

ESMERALDA SANTOS 

 

REPORT AND RECOMMENDATION 

 Defendant Esmeralda Santos previously pleaded not guilty plea to 

an indictment charging her with conspiracy to possess with intent to 

distribute 500 grams or more of a substance containing a detectable 

amount of methamphetamine in violation of 21 U.S.C. § 846 (Count 1), 

and possession with intent to distribute 500 grams or more of a 

substance containing a detectable amount of methamphetamine in 

violation of 21 U.S.C. § 841 (Count 2). Indictment, ECF No. 14. The 

United States and defendant thereafter entered into a amended plea 

agreement1 whereby defendant agreed to enter a plea of guilty to 

conspiracy to possess with intent to distribute methamphetamine in 

violation of 21 U.S.C. § 846, a lesser included offense of Count 1 of 

the Indictment. On September 20, 2018, defendant, accompanied by her 

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 

 1 The Amended Plea Agreement, ECF No. 50, was executed pursuant to the 

provisions of Fed. R. Crim. P. 11(c)(1)(A). In the Amended Plea Agreement, defendant acknowledged the possible immigration consequences of her guilty 

plea, although defendant stated that she was born in the United States. 
time she entered her guilty plea, defendant was in full possession of 

her 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 her competence 

to plead. Based on the observations of the undersigned, defendant 

understands the nature and meaning of the charges in the Indictment

and the consequences of her plea of guilty to the lesser included 

offense of Count 1. 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 Amended Plea Agreement signed by her, her attorney and the 

attorney for the United States and filed on August 13, 2018, 

represents the only promises made by anyone regarding the charges in 

the 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 her guilty plea. 

 Defendant confirmed the accuracy of the material aspects of the 

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

Amended Plea Agreement. She confirmed that she is pleading guilty to 

the lesser included offense of Count 1 of the Indictment because she 

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 the lesser 

included offense of Count 1 of the 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 the 

lesser included offense of Count 1 of the Indictment be accepted. 

Decision on acceptance or rejection of the plea agreement was deferred 
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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 

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 20, 2018 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge