United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
matter is before the Court on Defendant Woody Hamilton's
violation of supervised release. [See R. 862.]
Magistrate Judge Edward B. Atkins issued a Recommended
Disposition pursuant to Defendant's violation. [R. 870.]
Judge Atkins recommended revoking Mr. Hamilton's
supervised release and imposing a term of imprisonment of
twenty-one months followed by any unexpired term 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 Woody Hamilton, through counsel, waived his right
to allocution [R. 869], he nonetheless filed timely
objections to Judge Atkins's Recommended Disposition. [R.
871.] Mr. Hamilton objects to the Magistrate Judge placing
“too much reliance on Hamilton's preexisting
criminal history.” Id. at 1. He believes that
Judge Atkins gave him a more significant sentence based on
his criminal history category. Id. Mr. Hamilton did
not request, and the Court did not hold, an allocution
hearing. The objections raised by Mr. Hamilton 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, Mr. Hamilton's objections will be
Atkins'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 Atkins's discussion of the record into
Court entered judgment against Woody Hamilton on December 11,
2008, for conspiring to distribute Schedule II controlled
substances and conspiring to commit money laundering. [R.
530.] Mr. Hamilton received a sentence of 147 months in the
custody of the Bureau of Prisons for each count, to run
concurrently to each other, for a total sentence of 147
months,  followed by three years of supervised
release. Id. at 2-3. Pursuant to 18 U.S.C. §
3582(c)(2), on October 28, 2015, this Court granted a motion
by Mr. Hamilton to reduce his sentence from 147 months to 121
months. [R. 833.] He began his term of supervised release on
September 22, 2017. [R. 870 at 4.] On two separate occasions,
one prior to February 12, 2018, and again prior to March 5,
2018, the United States Probation Office retrieved sweat
patches that had been placed on Mr. Hamilton. Id.
Each of these patches tested positive for controlled
substances, and he admitted to use and possession of
controlled substances on two occasions. Id.
report from the United States Probation Office charged him
with four violations of his supervised release. Violation 1,
a Grade C violation, relates to his use of controlled
substances prior to February 12, 2018, in violation of
Standard Condition 7, which requires him to refrain from
excessive use of alcohol and purchasing, possessing, using,
distributing, or administering a controlled substance without
a prescription. Id. at 2. In accordance with Sixth
Circuit precedent, Violation 2, a Grade B violation, charged
Mr. Hamilton 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). Because of his second use of controlled
substances prior to March 5, 2018, the report charged him
with Violation 3, again for his use of controlled substances,
and Violation 4, committing another federal, state, or local
crime. [R. 370 at 2.] Mr. Hamilton's criminal history
category is VI. Id. at 4. Based on his criminal
history category and his Grade B violation, his Guideline
range for this violation is twenty-one to twenty-four months.
Id. at 6; U.S.S.G. § 7B1.4(a).
Atkins held a revocation hearing on March 13, 2018, where Mr.
Hamilton admitted to all violations in the report. [R. 870 at
1.] In the presence of counsel and after being advised of all
applicable rights, he entered a guilty plea to Violations 1,
2, 3, and 4. Id. The United States requested
revocation of his supervised release and some period of
additional incarceration. Id. at 5. Mr. Hamilton
requested the Court consider additional drug treatment.
Id. Subsequently, Judge Atkins prepared a Report and
Recommendation which evaluates the relevant 18 U.S.C. §
consideration of the nature and circumstances of Mr.
Hamilton's conviction, as well as his history and
characteristics, Judge Atkins recommended a sentence at the
bottom of the Guideline range. [R. 870 at 6.] This is Mr.
Hamilton's first violation. However, as Judge Atkins
noted, his violations note that he continued to use
controlled substances even after the first sweat patch was
retrieved by the United States Probation Office. Id.
at 5. This behavior, along with Mr. Hamilton's lengthy
history of drug-related offenses, supports Judge Atkins's
within-Guideline sentence on this violation.
Hamilton does not object to the calculation of his criminal
history, nor does he claim Judge Atkins inaccurately
calculated the Guideline range. [R. 871.] Instead, he merely
argues that the recommended twenty-one months is
“unduly harsh” for his first release violation.
While his argument is noted, Mr. Hamilton provides no legal
authority to depart below the applicable Guideline range, and
the Court finds no reason to do so. Thus, the Court finds
Judge Atkins's considerations and recommendations to be
both procedurally and substantively reasonable. Also, the
Magistrate's recommended sentence is sufficient but not