United States District Court, E.D. Kentucky, Southern Division, London
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on the Recommended Disposition
(“R&R”) [R. 55] filed in the Record by United
States Magistrate Judge Hanly A. Ingram on February 6, 2017.
The Magistrate's Recommended Disposition was requested
following the revocation of Jason Ray Marcum's supervised
release and the issuance of a warrant by this Court. [R. 47.]
Initially, a judgment was entered against Jason Ray Marcum on
May 18, 2010. [R. 25.] Defendant Marcum was sentenced to
one-hundred months of imprisonment and four years supervised
release for “manufacturing less than 50 marijuana
plants and being a felon in possession of a firearm.”
[R. 55 at 1.] Defendant Marcum began his term of supervised
release on October 12, 2016. [Id.] Mr. Marcum's
supervised release was revoked following a urine sample that
tested positive for amphetamine, methamphetamine, and
marijuana metabolite. Defendant also gave a written admission
admitting to alcohol consumption and methamphetamine use.
was arrested on January 28, 2017. After being taken into
custody by the United States Marshals Service, Defendant
Marcum notified the Marshals that he had “concealed two
to three grams of methamphetamine on his person.” [R.
55 at 2.] Following a colonoscopy the concealed drugs were
located and sent to the KSP Crime Lab for identification.
Defendant's conduct resulted in five supervised release
violations including: violation 1, failing to refrain from
unlawful use of a controlled substance; violation 2,
committing another federal, state, or local crime since use
is equivalent to possession; violation 3, Defendant was did
not abstain from the use of alcohol as required; violation 4,
the Defendant failed to answer truthfully to probation
officer inquiries; violation 5, Defendant violated an
additional federal, state, or local crime by hiding
methamphetamine on his person during his arrest.
[See R. 55 at 2-3.]
Ingram held a final hearing on January 30, 2017, concerning
revocation of Mr. Marcum's supervised release.
[Id. at 3.] At the revocation hearing, Marcum
admitted the factual basis for all charged violations and
“competently entered a knowing, voluntary, and
intelligent stipulation to the charged violations in the
Report and Addendum.” Id. The United States
argued for revocation and twenty-four months of imprisonment
with four years of supervised release but the Defendant
argued that eighteen months of imprisonment followed by four
years of supervised release would be adequate in addition to
drug treatment. Id. at 4.
evaluation of the entire record, the Report, the Addendum,
the § 3553 factors imported into the section 3583(e)
analysis, the Guidelines range, accompanying documents, and
the sentencing materials, Magistrate Judge Ingram issued an
R&R recommending revocation with a term of imprisonment
of twenty-one (21) months and a term of supervised release to
expire four years from the date of release under the
conditions previously imposed. This Recommendation also
includes a requirement that Defendant Marcum immediately
enroll in inpatient treatment for a period of three months
following his release. [Id. at 8.]
making this “within-Guidelines” recommendation,
Judge Ingram reiterates that Congress mandates revocation in
a case of this nature. [R. 55 at 6 (referencing 18 U.S.C.
§ 3583(g)(1)).] In evaluating the nature and
circumstances of Defendants' conviction, the Magistrate
Judge found that Defendant Marcum's underlying conviction
is very serious as he grew marijuana and was a felon in
possession of a firearm. Id. The Defendant has a
high criminal history category of V. [R. 55 at 4.] His past
illicit behavior “includes a significant record with
prior felony convictions related to drugs and violent
offenses.” Id. at 7. Besides the obvious
danger presented by a felon in possession of drugs and a
firearm, crimes of this nature are harmful to members of the
community at large and that community will be made protected
by the Mr. Marcum's incarceration. The Defendant
“is addicted to controlled substances and has shown
that he will go to great lengths to feed this
addiction.” Id. at 7.
Court and the Magistrate must consider the Defendant's
history and characteristics, and the need to deter criminal
conduct and protect the public when imposing a sentence. Mr.
Marcum was not quick to accept responsibility for violating
the terms of his supervised release, he initially misled the
USPO, and he engaged in drug use that was reminiscent of his
underlying offense. Further, the “primary wrong in the
supervised release context is the violation of the
Court's trust by an offender.” [R. 55 at 7.] The
Magistrate Judge found that a term of incarceration of
twenty-one months would be sufficient but not greater than
necessary and that the Defendant must overcome his
challenging addiction and “try harder to comply while
on supervised release.” Id. at 8.
Magistrate Judge warned the Defendant that, if he fails to
comply with the terms of his supervised release, he will face
increasingly serious penalties. Id. This Court
echoes the Magistrate's concerns and admonition. Mr.
Marcum must use this additional term of incarceration and
inpatient treatment to overcome his drug addiction. Also, the
Magistrate found that “[b]oth sides recognize that a
significant term of supervision is needed.”
Id. The R&R concludes by directing the parties
to the relevant statute that requires any objections to be
filed within fourteen (14) days of service. [Id. at
9.] As of this date, neither party has filed objections nor
sought an extension of time to do so.
this Court must make a de novo determination of
those portions of a recommended disposition to which
objections are made. 28 U.S.C. § 636(b)(1)(c). When no
objections are made, however, this Court is not required to
“review . . . a magistrate's factual or legal
conclusions, under a de novo or any other standard . . .
.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Parties who fail to object to a Magistrate's recommended
disposition are also barred from appealing a district
court's order adopting that report and recommendation.
United States v. Walters, 638 F.2d 947
(6th Cir. 1981). Nevertheless, this Court has
examined the record, and it agrees with the Magistrate
Judge's Recommended Disposition.
and the Court being sufficiently advised, it is hereby
ORDERED as follows:
Magistrate's Recommended Disposition [R. 55] as to Jason
Ray Marcum is ADOPTED as and for the Opinion of the Court;
Defendant, Jason Ray Marcum, is found to have violated the
terms of his Supervised Release as set forth in the Petition
filed by the United States Probation Office, the Addendum,
and the Recommended Disposition of the Magistrate Judge; and
Marcum's Supervised Release is REVOKED; and
Marcum is hereby sentenced to a term of incarceration for
twenty-one (21) months with a term of supervised release of
forty-eight (48) months to ...