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United States v. Tippett

United States District Court, Eastern District of Kentucky, Southern Division, London

November 14, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
LONNIE JOE TIPPETT, Defendant.

ORDER

KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

This matter is before the Court on the Report and Recommendation filed by Magistrate Judge Edward B. Atkins. (DE 36). The defendant, Lonnie Joe Tippett, allegedly violated the terms of his supervised release and an arrest warrant issued based on those alleged violations. (DE 25). The matter was then referred to Judge Adkins to conduct a final revocation hearing and recommend a proposed disposition of the matter. (DE 27).

Pursuant to the referral order, Judge Atkins conducted a final revocation hearing on August 5, 2014. (DE 35). At the hearing, defendant stipulated to the five (5) violations outlined in the supervised release violation report, four of which arose from defendant’s positive drug test for Suboxone and the other from his guilty plea to a DUI in Pike District Court. (DE 25, 36). He also exercised his right of allocution and waived his right of allocution before a United States District Judge. (DE 34, 36). The United States and defendant jointly recommended a sentence of imprisonment of twenty-one (21) months with no supervised release to follow.

Judge Atkins filed a Report and Recommendation on August 5, 2014. (DE 36). After considering the record and the factors set forth in 18 U.S.C. § 3553, Judge Atkins recommended that the defendant be found guilty of the five (5) violations outlined in the report and that the Court impose a sentence of twenty-one (21) months of incarceration with three (3) years of supervised release, less any period of incarceration, to follow. (DE 36). Judge Atkins further advised the parties that they had fourteen (14) days in which to file objections to the recommendation. (DE 36).

Defendant timely filed an objection (DE 37) to Judge Atkins’s Report and Recommendation. This Court must make a de novo determination of those portions of the Magistrate Judge’s proposed Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C). In his objection, defendant challenges Judge Adkins’s recommendation of three (3) years of supervised release following his incarceration. Defendant maintains that the joint recommendation of the United States and defendant of a sentence of twenty-one (21) months of incarceration with no supervised release to follow is sufficient to satisfy the factors in 18 U.S.C. § 3553. He argues that his state parole was revoked and he was incarcerated for thirty (30) months in state prison for the same events constituting violations of his federal supervised release. He further contends that he is currently on state parole and would be required to serve eight and one-half years in state prison if he were to violate his parole. (DE 37, p.2).

This Court has examined the record, and after considering the relevant statutory factors contained in 18 U.S.C. §§ 3583(e) and 3553(a), as well as the policy statements contained in Chapter Seven of the Sentencing Guidelines Manual, it finds a sentence of twenty-one (21) months of incarceration with no supervised release to follow is appropriate. While defendant has a criminal history and the instant violations occurred soon after he was released to supervision, the Court finds a period of twenty-one (21) months of incarceration is sufficient to deter future criminal conduct and to protect the public. Further, a sentence of twenty-one (21) months of incarceration is within the applicable guideline range of eighteen (18) to twenty-four (24) months of imprisonment. U.S. Sentencing Guidelines Manual §§ 7B1.1, .3-4. (2013).

Accordingly, IT IS ORDERED that:

1. Defendant Lonnie Joe Tippett’s objection (DE 37) to the Magistrate Judge’s Report and Recommendation (DE 36) is SUSTAINED;

2. The Magistrate Judge’s Report and Recommendation (DE 36) is ADOPTED IN PART and REJECTED IN PART as the opinion of the Court, consistent with this order;

3. Defendant Lonnie Joe Tippett is found to have VIOLATED the terms of his supervised release as set forth in Violations 1 through 5 of the petition filed by the United States Probation Office (DE 25), based on his stipulation;

4. Defendant’s supervised release is hereby REVOKED;

5. Defendant is SENTENCED to the custody of the Bureau of Prisons for a term of imprisonment of twenty-one (21) months, with no supervised release to follow; and

6. A separate judgment consistent this order shall be entered.


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