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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-272 

 JUDGE JAMES L. GRAHAM 

WERNER OMAR LOPEZ-MOLINA 

 

REPORT AND RECOMMENDATION 

 Defendant Werner Omar Lopez-Molina is charged with the unlawful 

reentry of a removed alien following conviction of an aggravated 

felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Superseding 

Indictment, ECF No. 17. The United States and defendant entered into a 

plea agreement1 whereby defendant agreed to enter a plea of guilty to 

that charge. On May 31, 2018, defendant, accompanied by his counsel 

and assisted by a Spanish interpreter, appeared for an arraignment and 

entry of guilty plea. 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 

his faculties, was not suffering from any apparent physical or mental 

illness, and was not under the influence of narcotics or alcohol. 

 1 The Amended Plea Agreement was executed pursuant to the provisions of 

Fed. R. Crim. P. 11(c)(1)(C) and was submitted at the arraignment. The 

Amended Plea Agreement includes an appellate waiver provision. Under the 

Amended Plea Agreement, defendant also acknowledged the immigration 

consequences of his guilty plea. 
 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 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 Amended Plea Agreement signed by him, his attorney and the 

attorney for the United States and filed on May 31, 2018, 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. Defendant was further advised 

that, if the Court refuses to accept the plea agreement, defendant 

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

does not withdraw his guilty plea, the District Judge may impose a 

sentence that is more severe than the sentence contemplated in the 

plea agreement, up to the statutory maximum. 

 Defendant confirmed the accuracy of the statement of facts 

supporting the charge, which is attached to the Amended 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). 

May 31, 2018 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge