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 Edward B. Atkins. [R.
88.] Defendant James Edward Frederick has been charged with
two violations related to his use of marijuana. Id.
26, 2010, this Court sentenced Mr. Fredrick to thirty-seven
months imprisonment for failure to register as a sex
offender. [R. 28.] He began his first life-term of supervised
release on March 28, 2012. [R. 88 at 1.] Six months later,
the United States Probation Office (USPO) requested
modification of his release due to unauthorized contact with
minors. [R. 29.] The Court granted this request and required
Mr. Fredrick serve eight consecutive weekends in jail.
Mr. Fredrick reported for one of those weekends, he admitted
to consuming alcoholic beverages. [R. 42.] His release was
revoked, and he was sentenced to four additional months of
imprisonment. [R. 43.] He began his second life-term of
supervised release on June 13, 2013. [R. 88 at 2.] The next
month, he admitted to using marijuana. Id. Again,
his release was revoked, and he was sentenced to eighteen
months imprisonment. [R. 59.] On November 21, 2014, he began
his third term of supervised release. [R. 88 at 2.] Six
months later, USPO discovered Mr. Fredrick had created a
Facebook page in violation of his conditions of release. [R.
70.] This Court revoked his release yet again, and he was
sentenced to twenty-one months of imprisonment. [R. 71.] His
fourth term of supervised release began on October 6, 2016.
[R. 88 at 2.] A little less than a year later, he was
arrested and charged with child abuse and endangering the
welfare of a minor, but the charges in the violation report
were ultimately dismissed upon a joint motion by the parties.
to the Supervised Release Violation Report (the Report)
issued by USPO on July 17, 2018, Mr. Fredrick submitted a
urine sample on July 6, 2018, that ultimately tested positive
for marijuana. Id. at 3. The Report charges Mr.
Fredrick with Violation #1, a Grade C Violation, for
violating the condition that prohibits him from excessive use
of alcohol and illegal use of controlled substances.
Id. Because a positive indication of the use of
methamphetamine constitutes possession of methamphetamine in
violation of 21 U.S.C. § 844(a), a Class E Felony, the
Report also charges Mr. Fredrick with Violation #2, a Grade B
Violation, for committing another federal, state, or local
crime. Id. at 2-3.
his initial appearance before Magistrate Judge Hanly A.
Ingram on August 6, 2018, Mr. Fredrick entered a knowing,
voluntary, and intelligent waiver of his right to a
preliminary hearing. [R. 85.] The United States moved for
interim detention and Mr. Fredrick requested release.
Id. Judge Ingram determined that Mr. Fredrick did
not meet the heavy defense burden under 18 U.S.C. §
3143(a) to justify release, and he remanded Mr. Jackson to
the custody of the United States Marshal. Id. On
August 23, 2018, Magistrate Judge Edward B. Atkins held a
final revocation hearing where Mr. Fredrick competently
entered a knowing, voluntary, and intelligent stipulation to
Violations #1 and #2. [R. 87.] Subsequently, Judge Atkins
prepared a Recommended Disposition. [R. 88.]
initial matter, Judge Atkins noted that revocation is
mandatory because Mr. Fredrick was in possession of a
controlled substance. 18 U.S.C. § 3583(g)(1). With Mr.
Fredrick's criminal history category of VI and a Grade B
violation,  Judge Atkins calculated his Guidelines
Range to be twenty-one to twenty-seven months. [R. 88 at 5.]
However, the statutory maximum for his violation is
twenty-four months under § 3583(e)(3), and thus the
range is effectively twenty-one to twenty-four months.
U.S.S.G. § 7B1.4(b)(1). At the final hearing, the
Government recommended twenty-one months of incarceration
plus five years of supervised release. [R. 88 at 5.] In
response, counsel for Mr. Fredrick requested inpatient drug
treatment without incarceration, followed by three years of
supervised release. Id. Mr. Fredrick's probation
officer, Scott Greiwe, testified that Mr. Fredrick is
cooperative and respectful, with “below average
intelligence.” Id. at 6. Because Mr. Fredrick
committed the underlying offense in 1991 when he was young,
Officer Greiwe believes there is no risk of re-offense.
Id. Further, Mr. Fredrick was abused by his
stepfather as a child, and both his mother and stepfather
were alcoholics, leading him to use drugs as a teenager.
Id. However, Officer Greiwe conceded that Mr.
Fredrick has not always been honest and has previously denied
his marijuana use. Id. The Government argued that
Mr. Fredrick's past behavior, substance use, and
deception make him a danger to society. Id.
consideration of the nature and circumstances of Mr.
Fredrick's conviction, as well as his history and
characteristics, Judge Atkins determined revocation
mandatory. Id. at 4. Judge Atkins noted Mr.
Fredrick's repeated breaches of the Court's trust by
his continued violations related to substance abuse.
Id. at 8-10. Ultimately, Judge Atkins recommended a
term of imprisonment of twenty-one months, followed by a
two-year term of supervised release.
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 Atkins's Report and
Recommendation were filed within the appropriate time by
either party. Instead, Mr. Fredrick has filed a waiver of
allocution. [R. 89.]
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 Smith's
recommended disposition. Accordingly, it is hereby
ORDERED as follows:
1. The Report and Recommendation [R. 88] as
to Defendant James Edward Fredrick, is
ADOPTED as and for the Opinion of the Court;
2. Mr. Fredrick is found GUILTY of
Violations #1 and #2;
3. Mr. Fredrick's Supervised Release is
4. Mr. Frederick is hereby sentenced to a term of
incarceration of twenty- ...