United States District Court, E.D. Kentucky, Southern Division
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.
1256.] Defendant Suzann Judy Phillips has been charged with
three violations of her terms of supervised release.
Id. at 2-3.
October 2015 this Court entered judgment against Ms. Phillips
for one count of conspiracy to manufacture a mixture or
substance containing methamphetamine. [R. 1002 at 1.] Ms.
Phillips was sentenced to twenty-eight months imprisonment to
be followed by a six-year term of supervised release.
Id. at 2-3. Ms. Phillips began her term of
supervised release on November 23, 2016 immediately following
her release from the custody of the Bureau of Prisons. On
January 17, 2019, the United States Probation Office (USPO)
issued a Supervised Release Violation Report (the Report)
charging Ms. Phillips with three violations. The USPO secured
a warrant the same day. [R. 1239; 1240.] The Report provides
the following background of the violations.
of her conditions of supervised release, a sweat patch (SP1)
was applied to Ms. Phillips on November 9, 2018. After
supposedly “scratching off” the sweat patch in
her sleep, Ms. Phillips returned to the probation office on
November 13, 2018 with the sweat patch for testing. This was
the first of six sweat patch tests conducted on Ms. Phillips
between November 2018 and January 2019. All of the sweat
patches tested positive for one illegal substance or another.
SP1 tested positive for cocaine; SP2 tested positive for
cocaine and methamphetamine/amphetamine; SP3 tested positive
for methamphetamine/amphetamine; SP4 tested positive for
methamphetamine/amphetamine and cocaine; SP5 tested positive
for methamphetamine, oxycodone, and opiates; and SP6 tested
positive for methamphetamine. When questioned about the
results of SP1 and SP2, Ms. Phillips admitted to the use of
both cocaine and methamphetamine. Ms. Phillips was also
questioned about the results from SP4. On that occasion, she
admitted to snorting morphine that may have contained
on the positive results from SP4 and Ms. Phillips's
admission of snorting morphine that may have contained
cocaine, the report alleges that Ms. Phillips violated the
condition of her supervised release that states “The
defendant shall refrain from excessive use of alcohol and
shall not purchase, possess, use, distribute, or administer
any controlled substance or any paraphernalia related to any
controlled substance, except as prescribed by a
physician.” USPO does not seek to hold Ms. Phillips
responsible for the sweat patches that tested positive for
methamphetamine because Pharmachem, Inc., the testing agency,
informed USPO that the positive tests could be the result of
residual effects of the drugs in Ms. Phillips's system
from her admitted use in November 2018. This conduct
constitutes a Grade C violation. See U.S.S.G. §
7B1.1(a)(3). The Report next alleges that Ms. Phillips
violated the condition of supervised release that states:
“The defendant shall not commit another federal, state
or local crime.” The Sixth Circuit has repeatedly held
that drug use is equivalent to possession, and therefore Ms.
Phillips's conduct would result in a violation of 21
U.S.C. § 844(a). This is a Grade B violation.
See U.S.S.G. § 7B1.1(a)(2).
the Report alleges that on December 10, 2018, Ms. Phillips
was arrested by the Corbin Police Department pursuant to a
warrant. According to that warrant, Ms. Phillips stole
$385.00 worth of merchandise from a Belk store in Corbin,
Kentucky. Ms. Phillips later pled guilty to Theft by Unlawful
Taking in Knox County District Court. This offense is a Class
A misdemeanor under Kentucky law. In light of this
conviction, the Report alleges that Ms. Phillips violated the
condition of her supervised release which states: “The
defendant shall not commit another federal, state or local
crime.” This conduct constitutes a Grade C violation.
See U.S.S.G. § 7B1.1(a)(3).
February 1, 2019, Magistrate Judge Hanly A. Ingram conducted
an initial appearance pursuant to Rule 32. 1. [R. 1246.] Ms.
Phillips knowlingly, voluntarily, and intelligently waived
her right to a preliminary hearing. Id. The United
States made an oral motion for detention, and Ms. Phillips
did not argue for release. Judge Ingram determined that
detention was required. Ms. Phillips's final hearing was
held on March 4, 2019 wherein Ms. Phillips knowingly,
voluntarily, and intelligently stipulated to the violations
set forth in the Report. [R. 1255.] At the hearing, Judge
Ingram heard testimony from defense expert Beverly Richards,
a psychotherapist, Probation Officer Greiwe, and Ms.
Phillips. Subsequently, Judge Ingram prepared a recommended
disposition. [R. 1256.]
initial matter, Judge Ingram noted that revocation is
mandatory because Ms. Phillips was in possession of a
controlled substance. 18 U.S.C. § 3583(g)(1). Ms.
Phillips's admitted conduct qualifies as a Grade C
violation with respect to the theft and drug use violations,
and a Grade B violation with respect to the drug possession
violation. With a criminal history category of III and a
Grade B violation, Ms. Phillips's range under
the Revocation Table is 8-14 months. See U.S.S.G.
that revocation was mandatory, Judge Ingram considered the
relevant §§ 3553 and 3583 factors in order to
determine an appropriate revocation term of imprisonment. Ms.
Phillips's underlying offense is a conviction for
conspiracy to manufacture a mixture or substance containing
methamphetamine. Judge Ingram expressed concern in his
Recommended Disposition regarding the nature of Ms.
Phillips's violations. Given her history of drug abuse
and underlying conviction, Judge Ingram was troubled by Ms.
Phillip's continued association with individuals who deal
or use drugs.
Ingram also considered Ms. Phillips's personal history
and characteristics, specifically her history with abuse and
resulting PTSD. Likewise, Judge Ingram found Ms.
Phillips's history of mental health issues, which Ms.
Richards testified to at the final hearing, to be a
mitigating circumstance. Finally, Judge Ingram weighed the
need to deter criminal conduct and protect the public
alongside the Court's need to provide Ms. Phillips with
necessary education, training or treatment, as well as the
need to avoid unwarranted sentencing disparities. Ultimately,
Judge Ingram recommended a sentence of three months of
imprisonment followed by two years of supervised release,
with the added condition that Ms. Phillips must spend the
first six months of of her supervision in an inpatient
substance-abuse treatment facility.
a below-guidelines sentence. Recognizing the requirement of a
“specific reason” for going outside the
guidelines range, Judge Ingram cited Ms. Phillips significant
history of physical and emotional abuse and resulting mental
health issues. Judge Ingram found, and this Court agrees,
that Ms. Phillips's circumstances are significantly
mitigating. A three-month period of incarceration will
adequately recognize the scope and seriousness of Ms.
Phillips's offense while also crediting the mitigating
the recommended sentence is below the guidelines range, Judge
Ingram found that a below-guideline sentence in this case was
sufficient but not greater than necessary to address Ms.
Phillips's breach of trust with the Court. Additionally,
Judge Ingram found that a two-year additional term of
supervision was warranted. As discussed above, the first six
months of the additional term of supervised release will be
served in an inpatient substance abuse treatment facility.
This added requirement will hopefully serve to protect the
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).
Ms. Phillips timely objected to the Report and
Recommendation, and this Court scheduled an allocution
hearing. [R. 1260; R. 1263.] However, Ms. Phillips
subsequently withdrew her objections and waived allocution.
[R. 1264.] The Court will grant Ms. Phillips request to
withdraw her objection and proceed as if no objections were
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 ...