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.
533.] Defendant Rodney Bishop has been charged with three
violations of his terms of supervised release. Id.
at 3. This is his fourth revocation.
November 2010, this Court entered judgment against Mr. Bishop
for conspiracy to manufacture a mixture or substance
containing methamphetamine, conspiracy to possess with intent
to distribute a mixture or substance containing
methamphetamine, and possession of pseudoephedrine to
manufacture methamphetamine. [R. 342.] Mr. Bishop was
sentenced to 70 months incarceration followed by three years
of supervised release. Id. Mr. Bishop's initial
term of supervised release began on March 6, 2014.
States Magistrate Judge Hanly A. Ingram's Recommended
Disposition more thoroughly sets out Mr. Bishop's history
of supervised release revocations. [See R. 533.] In
sum, Mr. Bishop has undergone revocation proceedings three
times before, with each violation involving the use and/or
possession of methamphetamine shortly after beginning a new
period of supervised release. Id. Mr. Bishop's
latest period of supervised release began on April 5, 2019.
recently, the United States Probation Office (USPO) issued
this fourth Supervised Release Violation Report (“the
Report”) on April 10, 2019. [R. 533 at 3.] The Report
charges three violations. According to the Report, Mr. Bishop
reported to the USPO office on April 9, 2019 following his
release from prison on April 5. The Officer requested a urine
specimen for drug testing. Mr. Bishop refused to stand where
the Officer could properly observe while Bishop produced the
specimen, and then the Officer noticed Mr. Bishop fiddling
with an object. The office ordered Mr. Bishop to remove the
object, which was revealed to be a plastic bottle containing
what appeared to be urine. Caught in an attempt to falsify
the drug test, Mr. Bishop admitted to using methamphetamine
the night of April 5, 2019 and signed a Positive Urinalysis
on the foregoing, the Report charges three violations.
Violation 1 is a violation of the condition requiring Mr.
Bishop to refrain from unlawful use of a controlled
substance. This is a Grade C violation. Violation 2 is a
violation of the condition requiring Mr. Bishop not commit
another federal, state, or local crime. The Sixth Circuit has
held drug use is equivalent to possession. Therefore, due to
Mr. Bishop's prior conviction and the Sixth Circuit's
holding, “simple possession of methamphetamine
constitutes conduct in violation of 21 U.S.C. § 844 (a),
a Class E Felony.” This is a Grade B violation.
Finally, Violation 3 charges a violation of the condition
requiring Mr. Bishop not obstruct or attempt to obstruct or
tamper with the efficiency of any drug testing. Mr. Bishop
violated this provision by attempting to avoid providing his
own fresh urine. This is a Grade C violation.
April 16, 2019 Mr. Bishop appeared before Magistrate Judge
Ingram for his initial appearance pursuant to Rule 32.1. [R.
529.] Mr. Bishop knowingly, voluntarily, and intelligently
waived his right to a preliminary hearing. Id. The
United States made an oral motion for detention, and Mr.
Bishop argued for release. Id. Judge Ingram
determined that detention was required. Id. On April
30, 2019, Judge Ingram held a final revocation hearing
wherein Mr. Bishop knowingly, voluntarily, and intelligently
stipulated to the violations alleged in the report. [R. 530.]
Subsequently, Judge Ingram prepared a recommended
disposition. [R. 533.]
initial matter, Judge Ingram noted that revocation is
mandatory because Mr. Bishop was in possession of a
controlled substance. 18 U.S.C. § 3583(g)(1). Mr.
Bishop'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.
533 at 3-4.] With his criminal history of IV and a Grade
violation, Mr. Bishop's range under the Revocation Table
is 12-18 months. See U.S.S.G. § 7B1.1(b). At
the final hearing, the United States argued for revocation
with the statutory maximum penalty of twenty-four months
imprisonment, with no term of supervised release to follow.
Id. at 6. In contrast, Mr. Bishop argued for
revocation with a sentence of time served and no period of
supervised release to follow. Id.
that revocation was mandatory, Judge Ingram considered the
relevant §§ 3553 and 3583 factors in order to
determine an appropriate revocation term of imprisonment. Mr.
Bishop's underlying offense is a conviction for
conspiracy to distribute methamphetamine which is a
significant crime. Id. Additionally, Judge Ingram
noted that the underlying conspiracy involved weapons,
threats, and the use of children as “lookouts.”
Id. at 8. Judge Ingram also considered the
characteristics and history of the defendant. As previously
stated, this is Mr. Bishop's fourth revocation
proceeding. This and Mr. Bishop's previous revocations
all stemmed from his continued drug use. Methamphetamine is a
dangerous drug, and Mr. Bishop's history suggests he will
continue to use methamphetamine. Accordingly, there is a
strong need to deter criminal conduct and protect the public.
Judge Ingram considered the Court's responsibility to
provide Mr. Bishop with education and resource to combat his
drug addiction; however, Mr. Bishop has already benefited
from both outpatient and inpatient drug treatment programs,
and Judge Ingram found no reason to believe further treatment
would be beneficial. Id. at 9.
Ingram correctly noted that the primary wrong in the
supervised release context is the violation of the
Court's trust by the defendant. [R. 533 at 9.] Judge
Ingram found Mr. Bishop's breach of trust to be
significant; even though many supervisees suffer from drug
addiction similar to Mr. Bishop, few cases accumulate four
violations. Mr. Bishop's violation is aggravated by his
attempt to falsify the urine test. Ultimately, Judge Ingram
rejected Mr. Bishops request for time served, and recommended
a sentence of twelve months and one day of incarceration, not
be followed by supervised release. This is a
within-guidelines sentence and below the statutory maximum
that was requested by the United States. With this
recommendation, Judge Ingram intended to “give [Mr.
Bishop] some sort of hope, some light at the end of the
tunnel.” [R. 533 at 10.]
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. Bishop has filed a waiver of
allocution. [R. 534.]
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 533] as to
Defendant Rodney Bishop is ADOPTED as and
for the Opinion of the Court;
Bishop is found GUILTY ...