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.
1206.] Defendant Andy Ray Lewis has been charged with three
violations of his terms of supervised release. Id.
November 2014, this Court entered judgment against Mr. Lewis
for one count of conspiracy to distribute oxycodone. [R. 223
at 1.] Mr. Lewis was sentenced to twenty months of
imprisonment, followed by three years of supervised release.
Mr. Lewis began supervision for the first time on December
17, 2015. Mr. Lewis violated supervision through use of
methamphetamine, cocaine, Subuxone, hydrocodone/hydromorphone
and buprenorphine. On April 14, 2016, the United States
Probation Office (USPO) issued a supervised release violation
report alleging seven violations. Mr. Lewis stipulated to all
seven, and was sentenced to nine months imprisonment,
followed by three years of supervised release.
Lewis's second period of supervision began on January 19,
2017. Months later, on April 25, 2017, USPO issued a
violation report alleging two violations based on a positive
urine test for buprenorphine. Mr. Lewis again admitted the
violations, and his supervised release was revoked. Again, he
was sentenced to nine months imprisonment and a three-year
period of supervised release. Additionally, a new condition
was added to Mr. Lewis's supervision: Mr. Lewis was
ordered to begin and ultimately complete a three-month
inpatient drug treatment program immediately upon release.
November 29, 2018, the USPO issued this most recent
Supervised Release Violation Report. This is Mr. Lewis's
third revocation. The Report alleges two violations.
Violation #1 alleges that Mr. Lewis violated the condition
that he refrain from unlawful use of any controlled
substance. This is a Grade C violation. Violation #2 is in
relation to defendant's alleged use of methamphetamine.
Mr. Lewis is charged with violation of the condition that he
refrain from committing another federal, state or local
crime. This is a Grade B violation. An addendum to the report
charges a third violation. This, too, is a violation of the
condition forbidding commission of another federal, state, or
local crime. This violation stemmed from a traffic stop,
conducted by an officer of the Williamsburg Police
Department. Mr. Lewis was cited with driving without a seat
belt, improper windshield, no brake light, and possession of
a controlled substance. Again, this is a Grade C violation.
January 4, 2019, Mr. Lewis appeared before Magistrate Judge
Ingram for his initial appearance pursuant to Rule 32.1. [R.
311.] Mr. Lewis knowingly, voluntarily, and intelligently
waived his right to a preliminary hearing. Id. The
United States made an oral motion for detention, and Mr.
Lewis did not argue for release. Id. Judge Ingram
determined that detention was required. Id. On
January 9, 2019, Judge Ingram held a final revocation hearing
wherein Mr. Lewis knowingly, voluntarily, and intelligently
stipulated to the violations alleged in the report as well as
the violation alleged in the addendum. [R. 314.]
Subsequently, Judge Ingram prepared a recommended
disposition. [R. 315.]
Ingram determined that detention was required. Id.
On October 9, 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. 1205.] Subsequently, Judge Ingram prepared a Recommended
Disposition. [R. 1206.]
initial matter, Judge Ingram noted that revocation is
mandatory because Mr. Lewis was in possession of a controlled
substance. 18 U.S.C. § 3583(g)(1). Mr. Lewis's
admitted conduct qualifies as a Grade B violation with
respect to the second violation, and a Grade C violation with
respect to the first and third violations. [R. 315 at 2.]
With his criminal history of II and a Grade B violation, Mr.
Lewis's range under the Revocation Table is 6-12 months.
See U.S.S.G. § 7B1.1(b). At the final hearing,
the parties jointly recommended to the Court revocation with
eighteen months of imprisonment, not to be followed by an
additional term of supervised release. [R. 315 at 5.]
that revocation was mandatory, Judge Ingram considered the
relevant §§ 3553 and 3583 factors in order to
determine an appropriate revocation term of imprisonment. [R.
315 at 6.] Mr. Lewis's underlying offense is a conviction
for conspiracy to distribute oxycodone which, although he was
found to be a minimal participant, is a significant crime.
Id. At sentencing, Mr. Lewis received a downward
departure on sentencing for his underlying offense. As
previously stated, Judge Ingram noted that this is Mr.
Lewis's third revocation proceeding. This and Mr.
Lewis's previous revocations all stemmed from continued
drug use. Judge Ingram found that Mr. Lewis's conduct was
indicative of “an addict whose drug use poses a danger
to himself and others.” [R. 315 at 6.] Also important
to Judge Ingrams analysis was the fact that Mr. Lewis tends
to violate his conditions of supervision very quickly
following release. Id. Mr. Lewis violated just four
months into supervision the first time, and only three months
the second time. Despite spending the first three months of
supervision in an inpatient drug treatment program during his
most recent period of supervision, he still ultimately
violated his conditions in a way that involves further drug
light of the aforementioned factors, Judge Ingram agreed with
the parties' position that the Probation Office has done
all it can to assist Mr. Lewis. Even court-ordered inpatient
treatment did not result in compliance with the conditions of
supervision. Ultimately, Judge Ingram agreed with the parties
jointly proposed sentence of 18 months incarceration, with no
additional term of supervised release. Although the
recommended sentence is above the guidelines range, Judge
Ingram and the parties agreed that an above-guidelines
sentence in this case was sufficient but not greater than
necessary to address Mr. Lewis's breach of trust in the
Court. Additionally, Judge Ingram found that no additional
term of supervision was warranted. Mr. Lewis violated his
conditions of supervisions all three times he was released,
and quickly. The parties, Probation Office, and Judge Ingram
agreed that nothing in Mr. Lewis's history suggests he
would be able to comply with supervision in the future.
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. Lewis has filed a waiver of
allocution. [R. 316.]
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:
Report and Recommendation [R. 315] as to
Defendant Andy Ray Lewis is ADOPTED as and
for the Opinion of the Court;
Lewis is found GUILTY of ...