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.
81.] Defendant Ellis Kirby has been charged with one
violation of his supervised release for failure to use
hydrocodone as prescribed by a physician. Id. at 2.
Kirby was sentenced in this Court to ninety (90) months
imprisonment for distributing oxycodone and being in
possession of a firearm in furtherance of a drug trafficking
offense. [R. 55.] He began his three-year term of supervised
release on June 3, 2016. [R. 81 at 1.]
to the Supervised Release Violation Report (the Report)
issued by the USPO on April 20, 2018, a probation officer
inspected Mr. Kirby's medications during a home visit.
Id. at 2. Mr. Kirby had a prescription for
hydrocodone, but the probation officer noted there were only
two tablets remaining where the prescription indicated eight
tablets should be remaining. Id. Mr. Kirby told the
officer he had taken one tablet the night before, but a
contemporaneous urine sample tested negative for opiates.
Id. The Report charges Mr. Kirby with Violation #1
for violating Standard Condition #7 which prohibits him from
use of any controlled substance “except as prescribed
by a physician, ” a Grade C Violation. Id. at
his initial appearance before Magistrate Judge Hanly A.
Ingram on May 9, 2018, the United States moved for interim
detention, and Mr. Kirby argued for release. Id. at
3. Judge Ingram found Mr. Kirby met the burden under Rule
32.1(a)(6) and 18 U.S.C. § 3143(a), and denied the
United States' motion. Id.
Ingram held a final revocation hearing on May 22, 2018, where
Mr. Kirby competently entered a knowing, voluntary, and
intelligent stipulation to the violation. Id. In
particular, Mr. Kirby admitted he had taken hydrocodone more
frequently than the prescribed one tablet every six hours.
Id. The Government recommended Mr. Kirby's
release be revoked and he serve six (6) months of
incarceration, followed by three (3) years of supervised
release. Id. at 4. Mr. Kirby argued against
revocation, requesting only an additional year of
supervision. Id. Additionally, Mr. Kirby called
Donna Sue Denney to testify he was taking the pills himself,
not distributing them to others. Id. Subsequently,
Judge Ingram prepared a Report and Recommendation which
evaluates the relevant 18 U.S.C. § 3553 factors.
Mr. Kirby's criminal history category of I and a Grade C
violation, Judge Ingram calculated his Guidelines Range to be
three (3) to nine (9) months. Id. Although this is
the first request from USPO to revoke Mr. Kirby's
release, the Government indicated he had been arrested for
public intoxication and had not reported that arrest.
Id. at 5. Additionally, USPO discovered he had
failed to report a new prescription for a controlled
substance. Id. The Government argued that the
inability to account for his hydrocodone pills was a serious
breach of the Court's trust when Mr. Kirby had previously
been convicted of opioid distribution. Id. Counsel
for Mr. Kirby underscored that revocation is not mandatory in
this case, and argued the increased term of supervised
release, even beyond the year requested, would be an adequate
deterrent to Mr. Kirby's behavior. Id.
consideration of the nature and circumstances of Mr.
Kirby's conviction, as well as his history and
characteristics, Judge Ingram found revocation to be
appropriate in this case. Id. at 8. Mr. Kirby's
criminal history, though minimal, includes distribution of
opioids and use of a firearm in that distribution, both
dangerous activities. Id. at 6. Furthermore, his
previous incidents with violations suggest that one weekend
of confinement was not enough to encourage compliance with
his terms of release. Id. However, this violation is
still relatively minor, and no evidence was presented to
suggest he had reverted to distribution of hydrocodone.
Id. at 7. Mr. Kirby has a legitimate prescription to
control pain from his diagnosed arthritis, but he must follow
the prescribed dose more strictly. Id. Because of
this, Judge Ingram recommended incarceration, but a downward
departure from the Guidelines Range: a term of one (1) month
imprisonment with an additional three (3) years of
supervision upon release. Id. at 7-8.
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 by either party. Mr.
Kirby instead has filed a waiver of his right to allocution.
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 Hearing scheduled for June 26, 2018, [R.
82] is CANCELLED;
2. The Report and Recommendation [R. 81] as
to Defendant Ellis Kirby, is ADOPTED as and
for the Opinion of the Court;
3. Mr. Kirby is found GUILTY of Violation