United States District Court, E.D. Kentucky, Southern Division
GREGORY F. VAN TATENHOVE, JUDGE.
matter is before the Court on the Report and Recommendation
filed by United States Magistrate Judge Hanly A. Ingram. [R.
1218.] Defendant Robert Joe Gibson. has been charged with
three violations of his terms of supervised release.
Id. at 2.
Gibson was initially sentenced to sixty months of
imprisonment followed by a four-year term of supervised
release following his guilty plea to conspiring to
manufacture 50 grams or more of a mixture or substance
containing a detectable amount of methamphetamine.
Id. at 1. Mr. Gibson was released and, within four
days, arrested again on state charges. Id. His
supervised release was revoked, and he was sentenced to
twelve months and one day of imprisonment followed by another
four-year term of supervised release. Id. Mr. Gibson
was undergoing this second term of supervised release when
the alleged violations occurred. Id.
United States Probation Office (“USPO”) issued a
Supervised Release Report (“the Report”) on
October 23, 2018. Id. at 2. It states that on
October 4, 2018 Officer Greiwe left a card on the door of Mr.
Gibson's residence directing him to report to the office
on October 9, 2018. When Mr. Gibson failed to appear, on
October 12, 2018 Officer Greiwe left a second card on Mr.
Gibson's door instructing him to appear on October 15,
2018. Mr. Gibson again failed to appear. Based on this
conduct, the Report alleges that Mr. Gibson committed two
violations. First, his failure to report on October 9 and
October 15 violated the condition that he “report to
the probation officer as instructed.” Because Officer
Greiwe did not know of Mr. Gibson's whereabouts on those
occasions, Mr. Gibson violated the condition that he
“must allow the probation officer to visit you at any
time at your home or elsewhere, and you must permit the
probation officer to ttake nay items prohibited by the
conditions of your supervision that he or she observed in
plain view.” All three violations are classified Grade
C violations. See U.S.S.G. § 7B1.1(a)(3)
addendum to the Report alleges a fourth violation. On October
20, 2018, Mr. Gibson was arrested by a Kentucky State Police
trooper while driving. On October 22, 2018 Mr. Gibson pleaded
guilty to the state charges of driving with no registration
plates, failure of owner to maintain required insurance,
operating on a suspended/revoked driver's license, and
operating a motor vehicle under the influence of
alcohol/drugs with aggravating circumstances. This conduct
also constitutes a Grade C violation. See U.S.S.G.
initial appearance before Magistrate Judge Hanly A. Ingram on
October 31, 2018, Mr. Gibson entered a knowing, voluntary,
and intelligent waiver of his right to a preliminary hearing.
[R. 1214.] The United States made a motion for detention, and
Mr. Gibson did not argue for release. [R. 1218 at 4.] Judge
Ingram determined that detention was required. Id.
On November 8, 2018, Magistrate Judge Hanly A. Ingram held a
final revocation hearing where Mr. Helbig competently entered
a knowing, voluntary, and intelligent stipulation to all
alleged violations set forth in Officer Greiwe's report.
[R. 1217.] Subsequently, Judge Ingram prepared a Recommended
Disposition. [R. 1218.]
violation to which Mr. Gibson has stipulated constitutes a
Grade C violation. See U.S.S.G. § 7B1.1(a)(3).
With his criminal history of III and a Grade C violation, Mr.
Gibson's range under the Revocation Table is 5-11 months.
See U.S.S.G. § 7B1.4(a). At the final hearing,
the United States argued for an above-guidelines sentence of
twenty months imprisonment, whereas Defense counsel requested
an eleven-month sentence. [R. 1218 at 5.] Both parties agreed
that Mr. Gibson would benefit from an additional period of
supervised release. Id.
Ingram considered the relevant § 3553 factors in the
context of the § 3583 analysis. Judge Ingram found that
Mr. Gibson's continued drug use puts him dangerously
close to the conduct of his underlying conviction.
Id. at 6. Additionally, Judge Ingram considered Mr.
Gibson's history of supervised release violations.
Id. at 7. Mr. Gibson's first supervised release
violation occurred just four days after his release from
incarceration. This time, Mr. Gibson was released just weeks
before violating. Judge Ingram noted that the primary wrong
in the supervised release context is violation of the
Court's trust by the Defendant. Id. at 8. Again,
Mr. Gibson had failed twice to comply with the conditions of
supervised release, indicating that the Court's trust was
misplaced. Id. at 8. Ultimately, Judge Ingram
recommended a term of imprisonment of twelve 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 Ingram's Report and
Recommendation were filed within the appropriate time by
either party. Instead, Mr. Gibson has filed a waiver of
allocution. [R. 1224.]
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 In0gram's
recommended disposition. Accordingly, it is hereby
ORDERED as follows:
1. The Report and Recommendation [R. 1218]
as to Defendant Robert Joe Gibson, is
ADOPTED as and for the Opinion of the Court;
2. Mr. Gibson is found GUILTY of all
3. Mr. Gibson's Supervised Release is
4. Mr. Gibson is hereby sentenced to a term of incarceration
of twel ...