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.
208.] Defendant Ronnie Duane Gray has been charged with two
violations of his terms of supervised release. Id.
August 2010 Judge Thapar, as a district court judge, entered
judgment against Mr. Gray for conspiracy to distribute
oxycodone. [R. 139.] Mr. Gray was sentenced to fifty-seven
months of imprisonment followed by a six-year term of
supervised release. Id. at 2-3. Mr. Gray was
released from Bureau of Prisons (BOP) custody and begin his
first term of supervised release in March 2014. [R. 158.] In
January 2015 Judge Thapar signed a Report on Offender Under
Supervision (12A) approving no Court action following Mr.
Gray's use of oxycodone while on supervision. Later, Mr.
Gray's supervised release was revoked in April 2015 due
to another instance of illegal use of oxycodone. [R. 172.] At
that time, Mr. Gray was sentenced to nine months of
imprisonment followed by ten years of supervised release.
Id. The Court also added the condition that Mr. Gray
participate in inpatient substance abuse treatment.
Id. Mr. Gray completed the nine months of
imprisonment and was again released from BOP custody in
8, 2019, the United States Probation Office (USPO) issued a
Supervised Release Violation Report (the Report) charging Mr.
Gray with two violations. According to the Report, Probation
Officer Scott Greiwe requested a urine sample from Mr. Gray
for drug testing. Prior to submitting the sample, Mr. Gray
admitted to smoking methamphetamine on or around April 30,
2019 and signed a Positive Urinalysis Admission Report. Based
on the foregoing, the Report charges two violations.
Violation 1 is a violation of the condition requiring Mr.
Gray to refrain from unlawful use of a controlled substance.
This is a Grade C violation. See U.S.S.G. §
7B1.1(a)(3). Violation 2 is a violation of the condition
prohibiting Mr. Gray from committing another federal, state,
or local crime. The Sixth Circuit has held drug use is
equivalent to possession. Therefore, due to Mr. Gray'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.
30, 2019 Mr. Gray appeared before Magistrate Judge Ingram for
his initial appearance pursuant to Rule 32.1. [R. 206.] Mr.
Gray knowingly, voluntarily, and intelligently waived his
right to a preliminary hearing. Id. The United
States made an oral motion for detention, and Mr. Gray did
not argue for release. Id. Judge Ingram determined
that detention was required. Id. On June 4, 2019,
Judge Ingram held a final revocation hearing wherein Mr. Gray
knowingly, voluntarily, and intelligently stipulated to the
violations alleged in the report. [R. 207.] Mr. Gray spoke at
his final hearing and explained his ongoing relationship and
health concerns to the Court. Mr. Gray has lately experienced
difficulties in his relationship with his fiancé,
which he is working to reconcile, and has been suffering from
pain caused by a hernia. Subsequently, Judge Ingram prepared
a recommended disposition. [R. 208.]
initial matter, Judge Ingram noted that revocation is
mandatory because Mr. Gray was in possession of a controlled
substance. 18 U.S.C. § 3583(g)(1). Mr. Gray's
admitted conduct qualifies as a Grade C violation with
respect to the first violation, and a Grade B violation with
respect to the second violation. [R. 208 at 5.] With his
criminal history of III and a Grade B violation, Mr. Gray's
range under the Revocation Table is 8-14 months. See
U.S.S.G. § 7B1.1(b). At the final hearing, the
parties' sentencing recommendations varied only slightly.
The United States argued for revocation with a penalty of
twelve months imprisonment followed by a year of supervision.
[R. 208 at 4.] Mr. Gray argued for a sentence of twelve
months and a day of defense to be followed by a year of
that revocation was mandatory, Judge Ingram considered the
relevant §§ 3553 and 3583 factors in order to
determine an appropriate revocation term of imprisonment.
First, Judge Ingram considered the underlying offense. Mr.
Gray's underlying offense is a conviction for conspiracy
to distribute oxycodone which is a significant crime.
Id. Through his present use of methamphetamine, Mr.
Gray continues to associate with individuals who traffic in
unlawful drugs. Id. at 6. Judge Ingram also
considered the characteristics and history of the defendant.
In so doing, Judge Ingram considered Mr. Gray's
education, history of addiction, and the escalation in drug
use from prescription medications to methamphetamine.
Id. at 7. Judge Ingram also noted Mr. Gray's
success while on supervision; prior to these revocation
proceedings, Mr. Gray succeeded for more than three years on
Judge Ingram considered the need to deter criminal conduct
and protect the public. Judge Ingram found that an additional
term of supervision would provide “guardrails”
for Mr. Gray to prevent him from committing more serious
criminal conduct. Finally, Judge Ingram considered Mr.
Gray's need for education, training, or treatment, if
any, and determined that Mr. Gray should participate in
substance-abuse treatment. Id.
Ingram correctly noted that the primary wrong in the
supervised release context is the violation of the
Court's trust by the defendant. [R. 208 at 8.] Judge
Ingram observed that Mr. Gray had been shown leniency in the
past. For example, Mr. Gray originally received a
below-guideline sentence, and he received leniency in the
form of the 12A and a lower-end sentence following his first
revocation. Finally, Judge Ingram considered whether an
additional term of supervised release should be imposed. He
hoped that an additional period on supervision would help Mr.
Gray establish good habits and resources for when he is no
longer on paper.
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. Gray has filed a waiver of
allocution. [R. 209.]
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
it is hereby ORDERED as follows:
1. The Report and Recommendation [R 203] as
to Defendant Ronnie Duane Gray is ADOPTED as
and for ...