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.
63.] Defendant Gregory Wilcheck has been charged with two
violations for a committing a state crime and failing to make
restitution payments. Id. at 2.
August 15, 2016, this Court sentenced Mr. Wilcheck to
thirty-six months imprisonment for two counts of bank fraud.
[R. 43; R. 44.] He began his five-year term of supervised
release on June 6, 2018. [R. 63 at 1.] Shortly thereafter,
the Court ordered he begin making restitution payments of
$350 per month. [R. 48.]
to the Supervised Release Violation Report (the Report)
issued by the United States Probation Office (USPO) on
January 9, 2019, Mr. Wilcheck was arrested and charged in
Fayette District Court on December 13, 2018, for driving
under the influence of alcohol and leaving the scene of an
accident. [R. 63 at 1.] This was his third DUI within ten
years. Id. at 2. Based on this arrest, the Report
charges Mr. Wilcheck with Violation #1 for violating the
condition of release requiring him to not commit another
federal, state, or local crime, a Grade C violation.
Id. Additionally, the Government charged him with
Violation #2, as Mr. Wilcheck had not made restitution
payments since October 22, 2018. Id.
his initial appearance before Magistrate Judge Hanly A.
Ingram on January 14, 2019, the United States moved for
interim detention. Id. at 3. Mr. Wilcheck asked to
continue the issue generally, but based on the heavy defense
burden imposed by § 3143, he was remanded to custody.
Id. He additionally made a knowing, voluntary, and
intelligent waiver of the right to a preliminary hearing. [R.
53.] At his final hearing on April 22, 2019, Mr. Wilcheck
entered a knowing, voluntary, and intelligent stipulation to
Violation #1 and the Government moved to dismiss Violation
#2. [R. 63 at 3.] Evidence was presented that medical issues
had resulting in Mr. Wilcheck's failure to make
restitution payments. Id. at 4. The Government
stressed the importance of restitution as part of his
sentence, but the Government also explained the USPO would
not have included this violation had they been aware of his
extenuating circumstances. Id.
Mr. Wilcheck's criminal history category of III and a
Grade C violation, Judge Ingram calculated his Guidelines
Range to be five to eleven months. Id. A Court may
also re-impose supervised release after such release is
revoked for a maximum period that usually subtracts any term
of incarceration imposed due to the violation. See
18 U.S.C. §§ 3583(b) and 3583(h). This depends on
the “term of supervised release authorized by statute
for the offense that resulted in the original term of
supervised release.” See 18 U.S.C. §
3583(h). Here, Mr. Wilcheck's maximum supervised release
term is five years, less any term of imposed imprisonment.
final hearing, the Government argued for a term of
imprisonment of eight months followed by fifty-two months of
supervised release, the maximum available term. [R. 63 at 4.]
Mr. Wilcheck requested a sentence at the bottom of the
guidelines (five months) but did not address supervised
release. Id. The Government acknowledged that this
was Mr. Wilcheck's first actual violation, and his arrest
for DUI had little relation to the underlying charges of bank
fraud. Id. at 5. Nonetheless, driving under the
influence presents a danger to the public. Id.
Additionally, Mr. Wilcheck has long struggled with alcohol
abuse, as he was charged with a separate DUI while on
pretrial release for this matter and his alcohol abuse led to
a gambling addiction, which provided motive for the
underlying bank fraud charges. Id. In contrast, Mr.
Wilcheck stressed that his recent medical issues had caused
him to relapse. Id. at 5-6. Mr. Wilcheck completed
the 500-hour Residential Drug Abuse Program and had been
sober for nearly three years, obtaining fulltime employment
and several promotions. Id. at 5. However, he
suffered a heart attack in October, prohibiting him from
working, and the medical bills caused him to lose much of his
savings. Id. at 6. On the night of his arrest, he
was having “extreme pain” in his head and chest
and was drinking alcohol to self-medicate on his way to the
Veterans Health Administration in Lexington. Id. Mr.
Wilcheck requested halfway house placement. Id.
consideration of the nature and circumstances of Mr.
Wilcheck's conviction, as well as history and
characteristics, Judge Ingram ultimately recommends the Court
revoke Mr. Wilcheck's supervised release and impose a
term of five months imprisonment, followed by fifty-five
months of supervised release. Id. at 6-8. Though
Judge Ingram does not recommend commitment to a halfway
house, Mr. Wilcheck will have the option of participation in
a 90-day treatment program upon release from incarceration.
Id. at 8.
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. Wilcheck has filed a waiver of
allocution. [R. 64.]
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. 63] as to
Defendant Gregory Joseph Wilcheck is ADOPTED
as and for the Opinion of the Court;
Wilcheck is found GUILTY of Violation #1
the Government's motion Violation ...