IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Criminal Action 2:17-cr-243 

 JUDGE JAMES L. GRAHAM

JOHN CHARLES FORTNER

REPORT AND RECOMMENDATION

Defendant is charged with one count of attempted coercion or

enticement of a minor in violation of 18 U.S.C. § 2422(b) (Count 1)

and one count of committing that offense while required to register as

a sex offender in violation of 18 U.S.C. § 2260A (Count 2).

Indictment, ECF No. 13. Defendant’s motion to dismiss Count 2 was

denied, Order, ECF No. 28, and defendant thereafter entered into a

plea agreement, executed under the provisions of Rule 11(c)(1)(C) of

the Federal Rules of Criminal Procedure. Plea Agreement, ECF No. 30.1

Consistent with the Plea Agreement, defendant’s guilty plea to Count 2

is conditional and reserves defendant’s right to appeal the denial of

his motion to dismiss Count 2 of the Indictment. Id. On June 8, 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

1 The Plea Agreement includes an appellate waiver provision that

preserves only certain claims for appeal or collateral challenge, including

the right to appeal the denial of his motion to dismiss. Under the Plea

Agreement, defendant also agrees to an order of restitution and to the

forfeiture provision contained in the Indictment. Defendant also recognizes

his obligations under SORNA.

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observation, the undersigned is satisfied that, at the time he entered

his guilty pleas, 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 pleas, 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 Indictment

and the consequences of his pleas of guilty to those charges. 

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 pleas are voluntary. Defendant

acknowledged that the Plea Agreement signed by him, his attorney and

the attorney for the United States and filed on May 29, 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. Defendant was further advised

that, if the Court refuses to accept the Plea Agreement, defendant

will have the opportunity to withdraw his guilty pleas but that, if he

does not withdraw his guilty pleas, the District Judge may impose 

sentences that are more severe than the sentences contemplated in the

Plea Agreement, up to the statutory maximums. 

Defendant confirmed the accuracy of the statement of facts

supporting the charges, which is attached to the Plea Agreement. He

confirmed that he is pleading guilty to Counts 1 and 2 of the

Indictment because he is in fact guilty of those offenses. The Court

concludes that there is a factual basis for the pleas. 

The Court concludes that defendant’s pleas of guilty to Counts 1

and 2 of the Indictment are knowingly and voluntarily made with

understanding of the nature and meaning of the charges and of the

consequences of the pleas. 

It is therefore RECOMMENDED that defendant’s guilty pleas to

Counts 1 and 2 of the Indictment 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

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).

June 8, 2018 s/ Norah McCann King 

 Date Norah McCann King

 United States Magistrate Judge

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