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United States v. Maxwell

United States District Court, E.D. Kentucky, Southern Division

May 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS W. MAXWELL, JR., Defendant.

          ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Maxwell's violation of supervised release. [See R. 102.] Magistrate Judge Hanly Ingram issued a Recommended Disposition pursuant to Defendant's violation. [R. 105.] Judge Ingram recommended incarceration for a period of twenty-four months with a life term of supervised release to follow. [Id. at 8.]

         I

         A

         Judge Ingram's Recommended Disposition accurately sets forth a more detailed account of the factual and procedural background of the case. Except for what the Court summarizes in its discussion below, the Court incorporates his discussion of the record and the standard of review into this Order.

         This Court entered an amended judgment against Maxwell on March 5, 2013, for failure to register as a sex offender. [R. 50.] He was sentenced for thirty seven (37) months imprisonment followed by a lifetime of supervised release. [Id.] Defendant Maxwell began his initial term of supervised release on February 19, 2013. [R. 105 at 1.] He first violated the conditions of his supervised release on June 18, 2013 and was incarcerated for eighteen months with lifetime supervised release. [Id.] Defendant began his second term of supervised release on October 22, 2014. [Id. at 2.] He violated the conditions of his supervised release a second time and was sentenced to twenty four (24) months of incarceration. [Id.] Defendant began his third term of supervised release on December 13, 2016. [Id.]

         Defendant Maxwell most recently violated his supervised release on February 13, 2017 by possessing a computer or device with access to the internet. [R. 105 at 2.] United States Probation Officer Collins observed Defendant at the public library using a cell phone and, when Defendant was confronted, he revealed he had two smart phones in his possession. [Id. at 3.] This is a Grade C Violation.

         Defendant's criminal history category is V and his admitted conduct is a Grade C Violation. According to the U.S. Sentencing Guidelines Manual § 7B1.2(b), Defendant's guideline range is seven to thirteen months.

         Defendant entered a stipulation to the charged violation at a hearing on February 23, 2017, conducted by Judge Ingram. [Id.] The parties did not agree on the sentence to be imposed. [Id.] The government argued for twenty-four months of incarceration and the defense argued for ten months incarceration. [Id.] Both parties agreed to a lifetime term of supervised release.

         After hearing from the defendant and analyzing the record, Judge Ingram recommended revocation of Defendant's supervised release and twenty-four months imprisonment with a life term of supervised release to follow under the same conditions imposed by this Court in the Defendant's Amendment Judgment. [R. 50.] This is an upward departure from the guidelines.

         Judge Ingram supported his upward departure recommendation by explaining what led to his recommendation and this Court agrees with his reasoning.

         B

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the R&R or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997) (unpublished opinion)). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

         Maxwell made a timely objection to the Recommendation. [R. 106.] Maxwell objected to the Magistrate Judge's recommendation of imprisonment for twenty-four (24) months and requested an allocution hearing. [R. 106.] An allocution hearing was held pursuant to Defendant's request. [See R. 110.] Maxwell's objections are sufficiently definite to trigger this Court's obligation to conduct a de novo review. See 28 U.S.C. ยง 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the motions, briefing, the parties' arguments, ...


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