United States District Court, E.D. Kentucky, Southern Division, London
Gregory F. Van Tatenhove, Judge
matter is before the Court on the Recommended Disposition [R.
197] filed by United States Magistrate Judge Hanly A.
Ingram. The Defendant, Kenneth Charles Ball, is
charged with one violation of his supervised release
conditions. Id. at 1. The single violation is for
violating the condition of release the he “not commit
another federal, state, or local crime.” Id.
at 2. Judgment was originally entered against the Defendant
in September 6, 2012, after Mr. Ball was found guilty on four
counts, which included: manufacturing 100 or more plants of
marijuana; possession of an unregistered machinegun;
possession of an unregistered short-barreled shotgun; and
possession of an unregistered projectile grenade.
Id. at 1. He was originally sentenced to 60 months
followed by a five-year term of supervised release.
Id. Mr. Ball began his term of supervised release on
January 20, 2015. Id.
October 24, 2016, the United States Probation Office issued a
Supervised Release Violation Report which initiated these
proceedings. Id. This report alleged one violation.
Report stated that U.S. Probation Officer Derek Vonkx was
told by Kentucky State Police Detective Billy Correll that,
during an interview, Mr. Ball admitted to kissing a
six-year-old child on the vagina and buttocks. Id.
at 2. Mr. Ball then confirmed that this incident occurred.
Id. Detective Correll told Officer Vonckx that the
case would be presented to the McCreary County Grand Jury for
an indictment. Id.
the Grand Jury returned an indictment charging Ball with one
count of sexual abuse, first degree, and one count of sodomy,
first degree. Specifically, the Grand Jury found that there
was probable cause that Ball “committed the offense of:
Sexual Abuse in the First Degree by
subjecting [victim] . . . a child less than 12 years of age,
to sexual contact, ” and “committed the offense
of: Sodomy in the First Degree by engaging
in deviate sexual intercourse with [victim] . . ., a child
less than 12 years of age.” (emphasis in original).
Ball, ultimately, pleaded guilty in state court to the
charges of sexual abuse in the first degree, in violation of
KRS § 510.110, and sodomy in the second degree, in
violation of KRS § 510.080. For each of these counts,
Mr. Ball was sentenced to concurrent eight-year sentences.
The conduct for which Ball pleaded guilty to constitutes a
Grade A violation. See U.S.S.G. § 7B1.1(a)(1).
final revocation hearing, held on December 6, 2018, Mr. Ball
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. 193.] On
December 11, 2018, Magistrate Judge Ingram issued a
Recommended Disposition which recommended revocation of
Ball's supervised release and a term of thirty months of
imprisonment, to run consecutive to his state sentence of
imprisonment, followed by a three-year term of supervised
release. [R. 197 at 7.]
Ingram appropriately considered the 18 U.S.C. § 3553
factors in coming to his recommended sentence. Like Mr.
Ball's original convictions, including for possession of
unregistered guns and a grenade, his current violation
reveals dangerous tendencies. Id. at 6.
Defendant's history and characteristics provide some
mitigating factors. Id. Mr. Ball is older and
suffers from post-traumatic stress disorder as a result of
his military service. Id. And, Mr. Ball has accepted
responsibility for his offense by pleading guilty in state
court and stipulating to that same violation in this Court.
Id. Here, acceptance of responsibility prevented the
minor from reliving the trauma in either state or federal
court. Id. at 7.
Defendant's mitigating factors do not relieve the need
for an above Guidelines sentence. Id. Both parties
accept as much. Id. A lengthier sentence is
justified, first, by Mr. Ball's original below Guidelines
sentence. Id. Secondly, it is demanded by the
particularly heinous nature of his conduct. Id.
need to deter criminal conduct weighs heavily in this case.
Id. Because the Defendant's conduct shows he
represents a risk to the most vulnerable individuals in
society, the Court must act to decrease those risks. For that
reason, the Court accepts Judge Ingram's recommendation
of sex-offender conditions, including a residency restriction
and a no-contact with minors provision. Id. at 8.
The parties represented to the Court that Mr. Ball will
receive sex-offender treatment in state court, but this Court
nonetheless will require an additional risk assessment by the
USPO. If USPO finds that the treatment was successful, then
the USPO will report that information to the Court and early
termination of supervision will be considered.
Mr. Ball's violation was a serious breach of the
Court's trust. By committing the crime, he breached his
promise to the Court that he would not commit another
federal, state, or local crime. Id.
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 Ball
submitted a waiver of allocution. [R. 198.] 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:
1. The Recommended Disposition [R. 197] as
to Defendant Kenneth Charles Ball is ADOPTED
as and for the Opinion of the Court;
2. Defendant Ball 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 ...