United States District Court, E.D. Kentucky, Southern Division
GREGORY F 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.
856.] Defendant Curtis Venters has been charged with four
violations of his terms of supervised release. Id.
a plea of guilty to conspiracy to distribute oxycodone, Mr.
Venters was sentenced to eighty-four months incarceration
followed by six years of supervised release. [R. 474.] His
sentence was subsequently reduced to seventy months
incarceration. [R. 660.] Mr. Venters began his term of
supervised release in January 2018.
10, 2019, the United States Probation Office (USPO) issued a
Supervised Release Violation Report (“the
Report”) charging Mr. Venters with four violations of
the conditions of his supervised release. The Court then
issued a warrant for the arrest of Mr. Venters. [R. 846;
to the USPO Report, United States Probation Officer Robin
McFarland tried contacting Mr. Venters on April 17, 2019 at
his house for a home visit. [R. 856 at 2.] Since Mr. Venters
was not at his house, McFarland left a hanger on the door
directing Mr. Venters to be at the probation office on April
18, 2019. Id. Mr. Venters did not go to the office
as instructed. Id.
McFarland then tried to contact Mr. Venters by calling his
phone. Id. Because none of the attempts at contact
were successful, Officer McFarland texted Mr. Venters warning
him that if he did not contact the probation office right
away that there was the possibility of a court action.
Id. Mr. Venters replied to Officer McFarland's
text and arrived at the probation office on April 26, 2019.
Id. While at the probation office, Mr. Venters told
Officer McFarland that it was his mother instead of himself
who had discovered the door tag, and that his mother had
never communicated to him the instructions on the tag.
Id. One of the conditions of Mr. Venters release
states: “The defendant shall report to the probation
officer in a manner and frequency directed by the court or
probation officer.” Id. The USPO Report
alleges that Mr. Venters violated that condition by failing
to report and respond as directed by Officer McFarland.
Id. This violation is a Grade C violation.
See U.S.S.G. § 7B1.1(a)(3).
second violation in the Report claims that while the USPO was
reviewing criminal records on April 25, 2019 they discovered
a hearing in Knott (County) District Court involving Mr.
Venters. Id. Mr. Venters was found guilty of
speeding 25 MPH over the speed limit and not wearing his seat
belt. Id. The state court dismissed the additional
charges of reckless driving, failure to produce insurance
card, fleeing or evading police second degree (motor
vehicle), and no/expired Kentucky registration receipt.
Id. Mr. Venter's failed to relay these charges
within 72 hours and when he did, did not tell the USPO about
any charges other than the speeding violation. Id.
Mr. Venter's failure to notify USPO violated his
condition that states: “The defendant shall notify the
probation officer within seventy-two hours of being arrested
or questioned by a law enforcement officer.”
See U.S.S.G. § 7B1.1(a)(3). This is a Grace C.
his visit to USPO on April 26, 2019, his urine sample tested
positive for methamphetamine and was diluted. Id. at
3. Based on this positive test Mr. Venters violated the
condition that he “refrain from excessive use of
alcohol and shall not purchase, possess, use, distribute, or
administer any substance or any paraphernalia related to any
controlled substances, except as prescribed by a
physician.” This was a Grade C violation.
the Report charges Mr. Venters with violating the condition
that he refrain from committing another federal, state, or
local crime. Id. This violation stems from his
positive drug test for methamphetamine. Under Sixth Circuit
precedent, a supervised releasee who uses a controlled
substance is considered to have possessed that controlled
substance. United States v. Crace, 207 F.3d 833 (6th
Cir. 2000). Therefore, Mr. Venter's positive drug test
established his possession of methamphetamine, a Schedule II
controlled substance. As such his conduct would be a Class E
felony under 21 U.S.C. § 844(a). This offense is a Grade
final revocation hearing, held on June 27, 2019, Mr. Venters
competently entered a knowing, voluntary, and intelligent
stipulation to Violations No. 3 and 4 that had been charged
by the USPO in the Supervised Release Violation Report. [R.
855.] At the same time, the United States moved to dismiss
Violations No. 1 and 2 with prejudice. [R. 856 at 4.] On June
28, 2019, Magistrate Judge Ingram issued a Recommended
Disposition which recommended revocation of Mr. Venter's
supervised release and a term of fourteen months of
imprisonment followed by a four-year term of supervised
release. Id. at 9.
Ingram appropriately considered the 18 U.S.C. § 3553
factors in coming to his recommended sentence for Mr.
Venters. Id. Judge Ingram began by noting that
Congress mandates revocation in this context because Mr.
Venters possessed a controlled substance. Id. at 6.
Mr. Venter's violations show a close nexus to his
underlying conviction for a drug crime. Id. at 7.
Defendant's history and characteristics show that he is
easily persuaded by others and is at great risk for
reoffending. Id. Mr. Venters needs to address his
substance-abuse issues because when he does not, he has made
poor decisions and has acted violently. Id. His
tendency for poor decision making also weighs heavily in the
need to protect society and Mr. Venters himself. Id.
While it is obvious that Mr. Venters needs substance abuse
treatment, he has not shown the requisite mental state to
make it successful. Id. As a result, Judge Ingram
did not recommended specific treatment. Id.
Mr. Venters' violation is a serious breach of the
Court's trust. Id. at 8. Not only did the
Defendant violate multiple terms of his supervised release,
he failed to be forthcoming to his probation officer.
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
Venters submitted a waiver of allocution. [R. 858.]
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.