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.
683.] Defendant Bryan H. McQueen has been charged with three
violations for tampering with his required substance abuse
testing. Id. at 2-3.
McQueen was sentenced to fifty-one months of imprisonment for
one count of conspiracy to distribute a quantity of pills
containing oxycodone. [R. 429 at 1-3.] This sentenced was
later reduced to forty-two months, pursuant to 18 U.S.C.
§ 2583(c)(2). [R. 550.] He began his three-year term of
supervised release on October 30, 2015. [R. 654 at 1.] On
February 24, 2016, Mr. McQueen admitted to the Probation
Office he had used methamphetamine, but the Probation Office
requested no action be taken against him. [R. 570.] The Court
approved this request. However, on September 6, 2016, Mr.
McQueen again stipulated to using methamphetamine. [R. 589.]
This Court revoked his supervised release, sentencing him to
twelve months incarceration followed by another three-year
term of supervised release. [R. 593 at 2-3.] On September 13,
2017, Mr. McQueen began his second supervised release. [R.
654 at 2.] He admitted again to using methamphetamine on
October 23, 2017, but, again, the Probation Office
recommended no action. [R. 645.] This Court approved this
request, and Mr. McQueen continued his supervised release.
Id. Then a week later, he submitted another urine
sample that tested positive for methamphetamine. [R. 648.] On
February 6, 2018, this Court found Mr. McQueen to have
violated the terms of his Supervised Release. [R. 657.] The
Court sentenced him to fourteen months of incarceration plus
another twelve months of supervised release and required Mr.
McQueen to participate in a six-month halfway house program.
Id. In February 2019, Mr. McQueen was released from
the custody of the Bureau of Prisons and he entered the
Dismas Charities halfway house program in Lexington,
Kentucky. [R. 683 at 2.]
to the Supervised Release Violation Report (the Report)
issued by the United States Probation Office (USPO) on May
18, 2019, the staff at Dismas Charities collected a urine
sample from Mr. McQueen, which was determined to be
“substituted” and “not consistent with
normal human urine.” Id. at 3. Then, on May
28, 2019, Dismas Charities notified USPO that while they had
attempted to secure a urine specimen from Mr. McQueen, they
found him to be in possession of a Visine bottle. For this
conduct, the Report charges him with Violations #1 and #2 for
violating the condition of supervised release which forbids
Mr. McQueen “from obstructing or attempting to obstruct
or tamper, in any fashion, with the efficiency and accuracy
of any prohibited substance abuse testing, which is required
as a condition of release, ” Grade C violations.
as a result of this conduct, Mr. McQueen has been dismissed
from Dismas Charities, prior to completion of the required
six-month term. Id. Accordingly, the Report charges
Mr. McQueen with Violation #3 for failure to complete this
condition of his supervised release, another Grade C
the Report was issued, USPO issued an Addendum to the Report.
Id. According to the Addendum, USPO traveled to
Dismas Charities on May 31, 2019, for the purpose of
arresting Mr. McQueen for violations of his supervised
release. Id. at 3-4. Upon taking Mr. McQueen into
custody, he was found to be in possession of heroin, a
Schedule I controlled substance. Id. at 4.
Possession of heroin is a violation of KRS § 218A.1415,
a felony, and therefore, the Addendum charges Mr. McQueen
with Violation #4, a Grade B violation. Id.
his initial appearance before Magistrate Judge Hanly A.
Ingram on June 4, 2019, the United States moved for interim
detention, and Mr. McQueen did not argue for release. [R.
679.] Based on the heavy defense burden imposed by 18 U.S.C.
§3143, Judge Ingram found detention appropriate.
Id. Additionally, Mr. McQueen made a knowing,
voluntary, and intelligent waiver of the right to a
preliminary hearing. Id. At his final hearing on
June 12, 2019, Mr. McQueen entered a knowing, voluntary, and
intelligent stipulation to Violations #1, #2, and #4, while
the Government moved to dismiss Violation #2 with prejudice.
Mr. McQueen's criminal history category of III and a
Grade B violation,  Judge Ingram calculated his Guidelines
Range to be eight to fourteen months. [R. 683 at 6.] Judge
Ingram also noted that revocation was mandatory in this case,
since he was in possession of a controlled substance.
Id.; 18 U.S.C. § 3583(g)(1). Mr. McQueen's
maximum penalty for a supervised release violation is two
years of imprisonment, but there is no maximum term of
supervised release. [R. 683 at 5-6.] The Government
recommended revocation and an above-guidelines sentence of
eighteen to twenty-four months, plus an additional year of
supervision. Id. at 5. Mr. McQueen argued for eight
months of incarceration, plus no additional supervision.
consideration of the nature and circumstances of Mr.
McQueen's conviction, as well as his history and
characteristics, Judge Ingram ultimately recommends the Court
revoke Mr. McQueen's supervised release and impose a term
of fourteen months imprisonment, followed by no additional
term of supervised release. [R. 683 at 9.] Judge Ingram noted
that Mr. McQueen was originally convicted of a conspiracy to
distribute oxycodone, but he had escalated to use of
methamphetamine for his last violation and now was found in
possession of heroin. Id. at 7. Mr. McQueen did not
deny that he is an addict, but he has failed to take
advantage of the Court's multiple attempts to help him.
Id. Accordingly, Judge Ingram did not recommend any
additional substance-abuse treatment. 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. McQueen has filed a waiver of
allocution. [R. 684.]
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. 683] as to
Defendant Bryan H. McQueen is ADOPTED as and
for the Opinion of the Court;
McQueen is found GUILTY of Violation #1,
Violation #3, and Violation #4;
the Government's motion Violation #2 is DISMIS ...