United States District Court, E.D. Kentucky, Central 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.
687.] Defendant Sheila Diane Spivey has been charged with
four violations of her terms of supervised release.
Id. at 2.
a guilty plea to 1 Count of conspiracy to distribute
oxycodone, Ms. Spivey was sentenced to 41 months of
incarceration followed by 3 years of supervised release. [R.
478.] Ms. Spivey began her term of supervised release in
September, 2014. [R. 687 at 1.] Among other conditions, Ms.
Spivey's terms of supervision included that she (1)
report to the probation officer as instructed, (2) follow the
officer's instructions, (3) participate in a substance
abuse program if necessary, (4) participate in a mental
health treatment program, (5) not commit another federal,
state, or local crime, and (6) not unlawfully possess a
controlled substance. Id. at 2-4.
Spivey's supervised release has been revoked twice
before. First, in May, 2015, she was found guilty of using a
controlled substance and the associated criminal conduct and
sentenced to six months of incarceration followed by three
years of supervised release. [R. 542.] Second, in August,
2017, Ms. Spivey was again found guilty of using controlled
substances and sentenced to 12 months and a day of
imprisonment, followed by two years of supervised release.
8, 2019, the United States Probation Office (USPO) issued a
Supervised Release Violation Report (the Report) charging Ms.
Spivey with two violations of the conditions of her
supervised release. [R. 687 at 2.] The Report alleges that
U.S. Probation Officer Joey Tyler conducted a home visit and
requested a urine specimen, which Ms. Spivey stated she could
not provide. Id. He also requested documentation of
her recent mental health hospitalization, but she denied
having a copy. Id. at 2-3. Officer Tyler told her to
report to the probation office later that day to comply with
both requests and Ms. Spivey failed to do so. Id. at
3. The Report alleges this constitutes one violation of Ms.
Spivey's supervised release conditions that she (1)
report to the probation officer as instructed, and (2) follow
the probation officer's instructions. Id. at
2-3. The Report also alleges one violation of the conditions
that she (1) participate in a substance abuse program if
necessary, and (2) participate in mental health treatment at
the probation officer's direction. Id. at 3. Ms.
Spivey had been referred to Cumberland River Behavioral
Health, but she failed to keep two appointments (causing her
to be 1.5 hours short of her required time in March, 2019),
and did not participate at all in April or May. Id.
at 3-4. Both are Grade C violations. Id. at 3-4.
USPO also filed an Addendum to the Report on May 31, 2019.
Id. at 2. This Addendum alleges that on May 30,
2019, Ms. Spivey admitted to using Suboxone (buprenorphine)
and methamphetamine. Id. at 4. This resulted in two
violations of Ms. Spivey's conditions, (1) that she
refrain from unlawful use of a controlled substance, (a Grade
C violation) and (2) that she not commit another federal,
state, or local crime, or unlawfully possess a controlled
substance (a Grade B violation). Id.
30, 2019 Ms. Spivey appeared before Magistrate Judge Hanly A.
Ingram for her initial appearance pursuant to Rule 32.1. [R.
675.] Ms. Spivey knowingly, voluntarily, and intelligently
waived her right to a preliminary hearing. Id. On
June 3, 2019, she appeared again for an initial hearing
regarding the violations in the Addendum, and again
knowingly, voluntarily, and intelligently waived her right to
a preliminary hearing. [R. 678.] The Court scheduled a final
hearing for June 17, 2019. Id. Ms. Spivey did not
argue for release, and the Court ordered she remain detained.
Id. At the final revocation hearing, Ms. Spivey
knowingly, voluntarily, and intelligently stipulated to the
violations alleged in the Report and the Addendum. [R. 686.]
That stipulation included a condition that the Court can find
her conduct constitutes a Grade B violation, at most. [R. 687
at 5; U.S.S.G. § 7B1.1(a)(2).] Subsequently, Judge
Ingram prepared a recommended disposition. [R. 687.]
her criminal history of II and a Grade B violation, the
parties agree that Ms. Spivey's guideline range under the
Revocation Table is 6-12 months. Id. at 6-7. The
parties jointly recommended revocation of supervision and a
12-month term of imprisonment, with no supervised release to
follow. [R. 687 at 5-6.]
Ingram considered the relevant §§ 3553 and 3583
factors in order to determine an appropriate revocation term
of imprisonment. Id. at 7. As an initial matter,
Judge Ingram noted that Congress mandates revocation in this
context because Ms. Spivey possessed a controlled substance.
Id.; see 18 U.S.C. § 3583(g)(1).
Considering the nature and circumstances of the underlying
offense, Judge Ingram noted that Ms. Spivey's underlying
conviction was for conspiracy to distribute oxycodone, which
she participated in because of her own addiction. [R. 687 at
7-8.] Judge Ingram emphasized Ms. Spivey's association
with individuals trafficking drugs increases her likelihood
of engaging in criminal behavior. Id.
considering Ms. Spivey's history and characteristics,
Judge Ingram noted the interaction of her mental health and
substance abuse issues. Id. at 8. While she had
shown some success in the past, her need to address her
substance abuse issues warranted a term of imprisonment to
deter criminal conduct and protect the public. Id.
Addressing Ms. Spivey's need for education, training, or
treatment, Judge Ingram found that mental health and
substance abuse assistance had not been successful in the
past. Id. Her failure to take advantage of the
assistance opportunities she had been offered made Judge
Ingram “unwilling” to recommend treatment.
Id. Finally, Judge Ingram noted the primary wrong in
supervised release violations is the offender's violation
of the Court's trust, warranting the (in effect) harsher
penalty than that for Ms. Spivey's prior violation.
Id. at 9; U.S.S.G. § 7A(3)(b).
imposition of supervised release, Judge Ingram pointed to Ms.
Spivey's multiple violations and failure to utilize the
USPO's offered resources, and reasoned taxpayers should
not be required to “bear the cost of trying to help
[her] succeed.” [R. 687 at 9.] Therefore, supervised
release will not be productive. Id. Ultimately,
Judge Ingram found the suggested sentence of 12 months of
incarceration with no term of supervised release to follow is
sufficient but not greater than necessary to punish and deter
Ms. Spivey's conduct in violating his supervised release.
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, Ms. Spivey has filed a waiver of
allocution. [R. 691.]
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. 687] as to
Defendant Sheila Diane Spivey is ADOPTED as