United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
matter is before the Court on Defendant Roberts's
violation of supervised release. [See R. 322.]
Magistrate Judge Hanly Ingram issued a Recommended
Disposition pursuant to Defendant's violation. [R. 324.]
Judge Ingram recommended revoking Defendant Robert's
supervised release and imposing a term of imprisonment of
twelve months and one day followed by thirty six months of
Federal Rule of Criminal Procedure 59(b), a party has
fourteen days after service to register any objections to the
recommended disposition or else waive his rights to appeal.
See also 28 U.S.C. § 636(b)(1). In order to
receive de novo review by this Court, any objection
to the report and recommendation 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) (citation omitted). A general objection
that fails to identify specific factual or legal issues from
the report and recommendation, however, is not permitted
since it duplicates the Magistrate's efforts and wastes
judicial economy. Howard v. Sec'y of Health &
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Defendant Roberts, through counsel, waived his right to
allocution [R. 325], he nonetheless filed timely objections
to Judge Ingram's Recommended Disposition. [R. 326.]
Roberts objects to (1) the Sixth Circuit's holding that
one positive drug screen equates to possession of an illegal
drug, which mandates revocation of supervised release under
18 U.S.C. § 3583, and (2) the Magistrate Judge's
consideration of Roberts's prior probation violations.
Id. at 4. Defendant Roberts did not request, and the
Court did not hold, an allocution hearing. Roberts's
noted objections are sufficiently definite to trigger the
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law,
and statutory authority, as well as applicable procedural
rules. For the reasons that follow, Roberts's objections
will be OVERRULED.
Ingram's Recommended Disposition accurately sets forth a
more detailed account of the factual and procedural
background of this case. Below, the Court mentions the key
facts to frame its discussion and analysis, but chooses to
incorporate Judge Ingram's discussion of the record into
Court entered judgment against Roberts on April 9, 2015, for
conspiring to manufacture 50 grams or more of a mixture or
substance containing a detectable amount of methamphetamine.
[R. 301.] Roberts received a sentence of thirty eight months
in the custody of the Bureau of Prisons, followed by forty
eight months of supervised release. Id. Defendant
Roberts began his term of supervised release on October 13,
2017. [R. 324 at 2.] He violated the terms of his supervised
release less than a month later when, on November 7, 2017, he
provided a urine sample that tested positive for
methamphetamine. Id. This is a Grade C violation.
Id. In accordance with Sixth Circuit precedent,
however, Defendant Roberts was also charged with the
violation of committing another federal, state, or local
crime - possession of an illegal substance - based on his
positive drug screen. Id. See also United States v.
Crace, 207 F.3d 833, 837 (6th Cir. 2000). This is a
Grade B violation. Defendant Roberts's criminal history
category is III. [R. 324 at 4.] Based on his criminal history
category and his Grade B violation, Roberts's guideline
range for this violation is eight to fourteen months.
See U.S.S.G. § 7B1.4(a).
Roberts admits to the conduct and factual basis that led to
his positive drug screen [R. 324 at 3], he objects to Judge
Ingram's finding that his testing positive for
methamphetamine requires revocation under the law. [R. 326.]
Defendant Roberts explains in detail, using certain canons of
statutory interpretation, why a single use of illegal drugs
should not mandate revocation of a term of supervised release
under 18 U.S.C. § 3583(g). Id. The argument
relies on the differences between subsections (g)(1) and
(g)(4) of § 3583. Roberts maintains that Congress could
not have intended mandatory revocation for a single positive
drug screen under § 3583(g)(1) since it listed under
§ 3583(g)(4) mandatory revocation for more than three
positive drug screens in the course of one year. See
Id. The contention lies with the Sixth Circuit's
holding that any positive drug screen requires revocation
because drug usage equates to drug possession, which violates
federal, state, and local laws. See id.;
Crace, 207 F.3d at 837. While Defendant
Roberts's argument is noted, Roberts also states his
understanding that the United States District Court for the
Eastern District of Kentucky is bound by the Sixth
Circuit's precedent on this point. [R. 326 at 4.] As
such, the Court overrules this objection.
Roberts next objects to Judge Ingram's consideration of
past probation violations when structuring a reasonable
recommendation for this violation. [R. 326 at 4-5.] According
to Roberts, “[i]f the guidelines do not permit criminal
convictions more than 15 years old to be considered in
calculating a defendant's criminal history, . . . it is
procedurally unreasonable to cite instances of past
misconduct more than 15 years ago to justify Roberts'
sentence now.” Id. at 8-9. While Roberts
argues that these violations occurred more than 15 years ago
and, therefore, should not be considered when structuring an
appropriate sentence here, Roberts points to no authority
suggesting such a consideration is improper. See id.
Ingram appropriately considered all of the 18 U.S.C. §
3553 factors, imported to revocation hearings by §
3583(e), in coming to his recommended sentence. One of the
factors considered by the Magistrate is the defendant's
history and characteristics, which include the expediency in
which Roberts violated his term of supervised release.
Id. at 7-8. Judge Ingram also noted the “very
close link between [Roberts] current violation conduct and
his original conviction. . . .” Id. at 7.
While Judge Ingram also considered Defendant Roberts's
past probation violations, “including nine separate
instances of cocaine use that resulted in probation
revocations, ” this consideration supports Judge
Ingram's recommendation to deny Defendant Roberts's
request for a sentence below the guideline range more than it
supports the Magistrate's recommendation for a
within-guideline sentence on this violation. See Id.
at 9. In further support of the within-guideline
recommendation, Judge Ingram mentioned the danger to the
community involved with each of Roberts's instances of
drug use, the fact that Roberts has already had the
opportunity to complete the RDAP program, the history of
leniency provided Roberts by the Court, and the need to deter
additional criminal conduct. Id. at 7-9. All of the
factors considered by Judge Ingram justify his recommendation
of a within-guideline sentence. Additionally, the sentence
recommended is not only within the guideline range applicable
to Roberts's violation, but also potentially allows
Roberts to earn good time credit toward an early release.
See Id. at 9. Thus, the Court finds Judge
Ingram's considerations and recommendation to be both
procedurally and substantively reasonable. Also, the
Magistrate's recommended sentence is sufficient but not
greater than necessary to address the statutory factors as
defined in 18 U.S.C. §§ 3553(a) and 3583(e).
Therefore, the Court overrules Roberts's objection for
foregoing reasons, and the Court being otherwise ...