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.
12.] Defendant Stephen Tate has been charged with three
violations of his supervised release for conduct relating to
misuse of his prescriptions. Id. at 2-3.
February 13, 2008, District Judge Harry S. Mattice, Jr., of
the United States District Court for the Eastern District of
Tennessee sentenced Mr. Tate to 120 months imprisonment for
conspiracy to distribute methamphetamine. [R. 1-3 at 1-3.] He
began his five-year term of supervised release in the Eastern
District of Tennessee on January 29, 2016. Id. While
in Tennessee, on March 14, 2017, Mr. Tate was charged with a
violation of his supervised release for taking more
hydrocodone pills than were prescribed to him, but the United
States Probation Office (USPO) recommended no action be
taken. [R. 12 at 1.] Eight months later, Mr. Tate requested
permission to participate in a detox and substance abuse
program, which was granted. Id. Jurisdiction was
transferred to this district on December 6, 2017, and he
completed the program on December 28, 2017. Id. at
to the Supervised Release Violation Report (the Report)
issued by the USPO on May 24, 2018, Mr. Tate took more than
his prescribed dose of hydrocodone and lorazepam.
Id. On May 4, 2018, he filled a fifteen-day
prescription for forty-five tablets of
hydrocodone/acetaminophen, and he admitted to USPO that he
took his final pill on May 11, 2018. Id. The
prescription records indicated he should have twelve pills
remaining on May 12, 2018. Id. On May 10, 2018, Mr.
Tate filled a prescription for twenty tablets of lorazepam
with instructions to take a maximum of two tablets per day.
Id. By May 14, 2018, he only had seven tablets
remaining when he should have had ten. Id. Also on
May 14, 2018, Mr. Tate submitted a urine sample that tested
positive for marijuana. Id. He relayed to the USPO
he had taken Ananda Hemp, which contains tetrahydrocannabinol
Mr. Tate was charged with three violations related to this
conduct. Violation #1, a Grade C Violation, charges him with
violating Standard Condition #7 that prohibits him from
purchasing possessing, using, distributing, or administering
any controlled substance except as prescribed by a physician.
Id. at 3. Violation #1 is based on the number of
remaining hydrocodone and lorazepam tablets during the
examination conducted by USPO on May 14, 2018. Id.
Violation #2, also a Grade C Violation, charges Mr. Tate with
another violation of Standard Condition #7, this time for his
marijuana-positive urine sample. Id. Violation #3, a
Grade B Violation, charges him with a violation of the
special condition that prohibits him from committing another
federal, state, or local crime, based on his criminal history
and the possession of marijuana, a Class E felony.
on June 15, 2018, the USPO issued an Addendum to the Report.
The Addendum alleged that, on June 5, 2018, Mr. Tate
submitted a second urine sample which also tested positive
for marijuana. Id. Again, Mr. Tate indicated he was
using Ananda Hemp. Id. The Addendum added two
violations stemming from this conduct. Violation #4, a Grade
C Violation, charges him with another violation of Standard
Condition #7, and Violation #5, a Grade B Violation, charges
him with another violation of the special condition that
prohibits him from committing another federal, state, or
local crime. Id. Both Violation #4 and Violation #5
resulted from the second marijuana-positive urine sample, and
thus, the alleged possession of marijuana. Id.
his initial appearance before Magistrate Judge Hanly A.
Ingram on June 20, 2018, the United States did not move for
interim detention. [R. 7.] Mr. Tate was released on his
current conditions of supervision. Id. On July 11,
2018, Judge Ingram held a final revocation hearing, where Mr.
Tate competently entered a knowing, voluntary, and
intelligent stipulation to Violation #1. [R. 11.] Because of
Mr. Tate's indications that he was using Ananda Hemp, not
marijuana, the United States moved to dismiss Violations
Mr. Tate'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. [R. 12 at 5.] The
parties agreed to a recommendation that Mr. Tate's
supervised release not be revoked. Id. While he has
two previous violations relating to his misuse of opiate
prescriptions, Mr. Tate had reached out to USPO for help when
he realized he had become dependent. Id. He has not
attempted to cover his relapses, instead seeking treatment on
his own. Id. Defense counsel agreed, noting that his
misuse of the prescription medication could be attributed to
his confusion regarding the tapering process. Id. at
6. Mr. Tate was previously taking four tablets of
hydrocodone/acetaminophen per day, but the tapering process
had changed this direction to three tablets per day without
him realizing this change. Id. Defense counsel also
admitted that it is Mr. Tate's responsibility to monitor
compliance with his prescriptions. Id.
consideration of the nature and circumstances of Mr.
Tate's conviction, as well as his history and
characteristics, Judge Ingram found revocation not to be
appropriate in this case. Id. at 6-7. Mr. Tate seems
dedicated to overcoming his addiction and has continued
outpatient substance abuse treatment. Id.
Additionally, the USPO indicates he has been honest and
forthcoming with their officers concerning his addiction and
road to recovery. Id. Judge Ingram ultimately
recommended no revocation, for Mr. Tate to continue on his
current term of supervised release under the current
conditions. Id. at 7. This term is set to expire on
January 28, 2021.
Court echoes Judge Ingram's concern about this breach of
the Court's trust. While Mr. Tate's proactive nature
and honest responses are commendable, he must be careful when
taking his prescriptions. This is Mr. Tate's third
violation of his supervised release, and future violations
may result in revocation.
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. Instead, Mr. Tate has filed a waiver of
allocution. [R. 13.]
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
it is hereby ORDERED as follows:
1. The Report and Recommendation [R. 12] as
to Defendant Stephen Tate, is ADOPTED as and