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United States v. Ball

United States District Court, E.D. Kentucky, Southern Division, London

June 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH CHARLES BALL, Defendant.

          ORDER

          Gregory F. Van Tatenhove, Judge

         This matter is before the Court on the Recommended Disposition [R. 197] filed by United States Magistrate Judge Hanly A. Ingram.[1] 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.

         On October 24, 2016, the United States Probation Office issued a Supervised Release Violation Report which initiated these proceedings. Id. This report alleged one violation. Id.

         The 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.

         Afterwards, 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).

         At the 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.]

         Judge 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.

         The 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.

         But the 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.

         The 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.

         Finally, 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.

         Pursuant 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 ...

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