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 Report and Recommendation
filed by United States Magistrate Judge Hanly A. Ingram. [R.
654.] Defendant Bryan McQueen has been charged with two
violations of his supervised release for submitting a urine
sample to the United States Probation Office that tested
positive for methamphetamine. Id. at 2.
McQueen was sentenced to fifty-one months of imprisonment for
one count of conspiracy to distribute a quantity of pills
containing oxycodone. [R. 429 at 1-3.] This sentenced was
later reduced to forty-two months, pursuant to 18 U.S.C.
§ 2583(c)(2). [R. 550.] He began his three-year term of
supervised release on October 30, 2015. [R. 654 at 1.] On
February 24, 2016, Mr. McQueen admitted to the Probation
Office he had used methamphetamine, but the Probation Office
requested no action be taken against him. [R. 570.] The Court
approved this request. However, on September 6, 2016, Mr.
McQueen again stipulated to using methamphetamine. [R. 589.]
This Court revoked his supervised release, sentencing him to
twelve months incarceration followed by another three-year
term of supervised release. [R. 593 at 2-3.] On September 13,
2017, Mr. McQueen began his second supervised release. [R.
654 at 2.] He admitted again to using methamphetamine on
October 23, 2017, but, again, the Probation Office
recommended no action. [R. 645.] This Court approved this
request, and Mr. McQueen continued his supervised release.
later, on October 31, 2017, Mr. McQueen submitted a urine
sample to the Probation Office, which tested positive for
methamphetamine. [R. 648.] He was arrested on January 1,
2018, and charged with two violations of his supervised
release. [R. 651.] Violation #1, a Grade C Violation, alleges
Mr. McQueen violated Special Condition #7 prohibiting him
from purchasing, possessing, using, distributing, or
administering any controlled substance or paraphernalia
related to a controlled substance, except as prescribed by a
physician. Violation #2 alleges Mr. McQueen violated his
supervised release by committing a federal, state, or local
crime, namely, the possession of methamphetamine. This is a
violation of 21 U.S.C. § 844(a), a Class E Felony and a
Grade B Violation.
initial appearance on January 2, 2018, the Government moved
for interim detention and Mr. McQueen did not object. [R.
652.] He was remanded to custody of the United States Marshal
Service. Id. On January 10, 2018, at his final
hearing, Mr. McQueen entered a knowing, voluntary, and
intelligent stipulation to Violation #1 and Violation #2. [R.
653.] However, the parties did not agree to the sentence. [R.
654 at 3.] Mr. McQueen requested eight months incarceration,
followed by one year of an inpatient drug treatment program
and a few months of supervised release, or in the
alternative, eight months incarceration followed by ninety
days of an inpatient drug treatment program and a longer term
of supervised release. Id. The Government requested
revocation plus eighteen months incarceration. Id.
Subsequently, Judge Ingram prepared a Report and
Recommendation which evaluates the relevant 18 U.S.C. §
Mr. McQueen's criminal history category of III and a
Grade B violation, Judge Ingram calculated his Guidelines
Range to be eight to fourteen months of imprisonment.
Id. at 4. The Government's proposed sentence was
above this Range, emphasizing Mr. McQueen's multiple
violations since his initial release. Id. Counsel
for Mr. McQueen underlined his severe drug addiction that has
led to these violations, requesting the Court focus on
rehabilitation rather than lengthy incarceration.
Id. at 5.
Ingram noted initially that 18 U.S.C. § 3583(g)(1)
mandates revocation of Mr. McQueen's supervised release
because he was in possession of methamphetamine. Id.
at 5-6; see also United States v. Crace, 207 F.3d
833, 836 (6th Cir. 2000). Based on his original conviction
and subsequent violations, Judge Ingram determined that his
continued drug use poses a danger to society and creates a
need to protect the public. Id. at 6. Further, each
of these violations involved lying to his probation officer,
a violation of trust imparted by the Court during supervised
release. Id. at 7. Mr. McQueen's previous
sentence of twelve months was insufficient to deter him from
committing similar violations, and therefore, Judge Ingram
determined any sentence below twelve months would be
inappropriate. Id. Ultimately, Judge Ingram
recommends an incarceration of fourteen months followed by
twelve months of supervised release. Id. at 7-8.
Because of his history of repeated drug-related violations,
Judge Ingram also recommended he serve the first six months
of his release at a halfway house.
to Rule 59(b) of the Federal Rules of Criminal Procedure, the
Report and Recommendation advises the parties that objections
must be filed within fourteen (14) days of service.
Id. at 16; see 28 U.S.C. § 636(b)(1).
No. objections to Judge Ingram's Report and
Recommendation were filed within the appropriate time period
by either party. Mr. McQueen filed notice that he had waived
his right to allocution. [R. 655.]
this Court must make a de novo determination of
those portions of the Report and Recommendation to which
objections are made. 28 U.S.C. § 636(b)(1)(c). But when
no objections are made, as in this case, the Court is not
required to “review . . . a magistrate's factual or
legal conclusions, under a de novo or any other
standard.” See Thomas v. Arn, 474 U.S. 140,
151 (1985). Parties who fail to object to a magistrate
judge's report and recommendation 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, the Court has
examined the record and agrees with Judge Ingram's
recommended disposition. Accordingly, it is hereby
ORDERED as follows:
1. The Report and Recommendation [R. 654] as
to Defendant Bryan H. McQueen is ADOPTED as
and for the Opinion of the Court;
2. Mr. McQueen is found to have violated the terms of his
Supervised Release as set forth in the Report filed by the
U.S. Probation Officer and the Recommended Disposition of the
3. Mr. McQueen's Supervised Release is
4. Mr. McQueen is hereby sentenced to a term of incarceration
of fourteen (14) months;
5. Upon completion of the term of incarceration, Mr. McQueen
is hereby sentenced to a term of supervised release of
twelve (12) months under ...