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 Recommended Disposition [R.
855] filed by United States Magistrate Judge Hanly A. Ingram.
The Defendant, Ewing Bowling, is charged with three
violations of his supervised release conditions. Id.
at 2. These three violations include: (i) “purchase,
possess, use, distribute, or administer any controlled
substance or any paraphernalia related to any controlled
substance, except as prescribed by a physician;” (ii)
committing another state, federal, or local crime; and (iii)
failing to follow the instructions of a probation officer.
Id. Judgment was originally entered against the
Defendant in March 2015, after Mr. Bowling pled guilty to
conspiracy to manufacture methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. Id. at 1. He
was originally sentenced to 60 months followed by a
three-year term of supervised release. Id. Mr.
Bowling began his term of supervised release on January 22,
December 4, 2018, the United States Probation Office issued a
Supervised Release Violation Report which initiated these
proceedings. Id. The report first alleged two
violations but later was given an addendum alleging a third
the Report stated that the Defendant submitted two urine
samples that tested positive for methamphetamine on separate
occasions. Id. In response to this result, the
Defendant signed an admission that he used the drugs as a
pick-me up at work. Id. Based on this admission the
Defendant was charged with violating the condition of his
supervised release which prohibits the use of any controlled
substance except as prescribe by a physician. Id. at
2. This is a Grade C violation.
the Report charged the Defendant with a violation of the
condition that he refrain from committing another federal,
state, or local crime. Id. This violation also stems
from the Defendant's confession that he used
methamphetamine. Id. Under Sixth Circuit precedent,
a supervised releasee who uses a controlled substance is
considered to have possessed that controlled substance.
United States v. Crace, 207 F.3d 833 (6th Cir.
2000). Therefore, Bowling's confession established his
possession of methamphetamine, both Schedule II controlled
substances. As such his conduct would be a Class E felony
under 21 U.S.C. § 844(a), Simple Possession of a
Controlled Substance. This conduct constitutes a Grade B
the Addendum added the charge that Bowling failed to follow
the instructions of his probation officer. Id. at 3.
Bowling was given a sweat patch to detect the presence of
drugs and was told to notify the probation office if the
condition of the patch changed. Id. But Bowling did
not notify the probation office when the sweat patch became
partially separated from the skin.
final revocation hearing, held on March 22, 2019, Bowling
competently entered a knowing, voluntary, and intelligent
stipulation to all violations that had been charged by the
USPO in the Supervised Release Violation Report. [R. 854.] On
March 26, 2019, Magistrate Judge Ingram issued a Recommended
Disposition which recommended revocation of Bowling's
supervised release, a term of four months of imprisonment,
completion of a 90-day inpatient drug treatment program
immediately upon release, submission to a mental health
evaluation, and post-release supervision until January 21,
2021. [R 855.]
Ingram appropriately considered the 18 U.S.C. § 3553
factors in coming to his recommended sentence. Bowling has
shown a willingness to take responsibility and cooperate with
the Court. Id. at 7. For that reason, his sentence
should be focused on rehabilitation. Id. If Bowling
can overcome his addiction, then future illicit conduct will
be deterred. Id. Bowling's conduct was a breach
of the Court's trust. The penalty imposed today, however,
is enough to get Bowling attention. And while Bowling is
getting a slightly below Guidelines sentence, his inpatient
drug treatment resembles custody because he is unable to
leave the facility. Id. at 8.
to Rule 59(b) of the Federal Rules of Criminal Procedure, the
Recommended Disposition further advises the parties that
objections must be filed within fourteen (14) days of
service. Id. at 9. See 28 U.S.C. §
636(b)(1). No. objections have been filed, and Defendant
Bowling submitted a waiver of allocution. [R. 856.]
Generally, this Court must make a de novo
determination of those portions of the Recommended
Disposition to which objections are made. 28 U.S.C. §
636(b)(1)(c). When no objections are made, as in this case,
this 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,
this Court has examined the record and agrees with Magistrate
Judge Ingram's Recommended Disposition. Accordingly, and
the Court being sufficiently advised, it is hereby
ORDERED as follows:
Recommended Disposition [R. 855] as to
Defendant Ewing Bowling is ADOPTED as and
for the Opinion of the Court;
Defendant Bowling is found to have violated the terms of his
Supervised Release as set forth in the Report filed by the
U.S. Probation Officer and the Recommended Disposition of the
Bowling's Supervised Release is REVOKED;
Bowling is SENTENCED to the Custody of the
Bureau of Prisons for a term of four months of imprisonment;
Bowling is required to comply with all aspects and complete a
90-day inpatient drug treatment ...