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-268(2) 

 JUDGE JAMES L. GRAHAM 

KENNITH P. NELSON 

 

REPORT AND RECOMMENDATION 

 Defendant Kennith P. Nelson is charged in an Indictment with one 

count of theft of firearms from a licensed firearms dealer in 

violation of 18 U.S.C. §§ 922(u), 924(m)(Count 1); one count of 

possession of stolen firearms in violation of 18 U.S.C. §§ 922(j), 

924(a)(2)(Count 2); and one count of being a felon in possession of 

firearms in violation of 18 U.S.C. §§ 922(g)(1)(Count 4). The United 

States and defendant 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 Count 

1 of the Indictment.1 On February 23, 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]; 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). 

 1 The Plea Agreement, Doc. No. 42, includes an appellate waiver 

provision which preserves to defendant only certain claims for appeal or 

challenge under 28 U.S.C. § 2255. 
 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 charges in the Indictment

and the consequences of his plea of guilty to Count 1 of the 

Indictment. 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 January 10, 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 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 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 Indictment 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 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). 

February 23, 2018 s/ Norah McCann King 

 Date Norah McCann King 

 United States Magistrate Judge