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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-204 

 JUDGE MICHAEL H. WATSON 

ERICK D. PORTER 

 

REPORT AND RECOMMENDATION 

 Defendant Erick D. Porter previously pleaded not guilty to a 

Superseding Indictment charging him with being a felon in possession 

of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a). 

Superseding Indictment, ECF No. 7. The Superseding Indictment also 

contains a forfeiture count. The United States of America and 

defendant thereafter 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 that 

charge.1 On July 29, 2020, defendant, accompanied by his counsel, 

participated in a change of plea proceeding. 

 After being advised of his right to appears personally and with 

his counsel and after consulting with his counsel, defendant consented 

to appear by videoconference. 

Defendant also consented, pursuant to 28 U.S.C. §636(b)(3), to 

enter a guilty plea before a Magistrate Judge. See United States v. 

Cukaj, 25 Fed. Appx. 290, 291 (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. 

1 Under the Plea Agreement, ECF No. 33, defendant agreed to the 

forfeiture provision contained in the Superseding Indictment. The Plea 

Agreement also includes an appellate waiver provision that preserves only 

certain claims for appeal or collateral challenge. 

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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, other drugs, 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 Superseding 

Indictment and the consequences of the plea of guilty 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 June 3, 2020, represents the only 

promises made by anyone regarding the charge 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 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 

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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 

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). 

July 29, 2020 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge

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