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.
23.] Defendant Stephen Tate has been charged with two
violations of his supervised release. Id. at 2-3.
February 13, 2008, District Judge Harry S. Mattice, Jr., of
the United States District Court for the Eastern District of
Tennessee sentenced Mr. Tate to 120 months imprisonment for
conspiracy to distribute methamphetamine. [R. 1-3 at 1-3.] He
began his five-year term of supervised release in the Eastern
District of Tennessee on January 29, 2016. Id. While
in Tennessee, on March 14, 2017, Mr. Tate was charged with a
violation of his supervised release for taking more
hydrocodone pills than were prescribed to him, but the United
States Probation Office (USPO) recommended no action be
taken. [R. 12 at 1.] Eight months later, Mr. Tate requested
permission to participate in a detox and substance abuse
program, which was granted. Id. Jurisdiction was
transferred to this district on December 6, 2017, and he
completed the program on December 28, 2017. Id. at
2. On May 24, 2018, USPO in the Eastern District of Kentucky
charged Mr. Tate with various violations of his supervised
release and he plead guilty to one charge of misusing his
prescription medication. Id. at 3-4. The Court
adopted both parties' recommendation that Mr. Tate's
supervised release not be revoked. Id. at 4.
to the Supervised Release Violation Report (the Report)
issued by the USPO on March 19, 2019, Mr. Tate has committed
two violations of his supervised release conditions. [R. 23
at 2.] On July 9, 2019, Mr. Tate was a passenger in a vehicle
driven by a person under the influence. Id. After
being pulled over, Mr. Tate consented to be searched when a
Kentucky State Police (KSP) officer saw drug paraphernalia in
the car. Id. The officer found on Mr. Tate his
prescription Oxycodone, which he had been using improperly,
and two small bags of methamphetamine. Id. at 2-3.
Mr. Tate was arrested and plead guilty to three state charges
related to this conduct. Id. at 3.
on this incident, USPO charged Mr. Tate with two supervised
release violations. Id. First, Mr. Tate was charged
with violating the condition he not commit another federal,
state, or local crime, and that he not illegally possess a
controlled substance (here, methamphetamine). Id.
This is a Grade B violation because the most serious state
charge (possession of methamphetamine) is a Class D felony.
Id. Violation #2 is based on the condition that Mr.
Tate only use controlled substances as prescribed by a
physician. Id. The officer who arrested Mr. Tate
found he had been taking an average of nine Oxycodone pills a
day instead of the four per day he was prescribed. This is a
Grade C violation, but the United States moved to dismiss
this violation at the final hearing. Id.
his initial appearance before Magistrate Judge Hanly A.
Ingram on July 10, 2019, Mr. Tate knowingly, voluntarily, and
intelligently waived his right to a preliminary hearing. [R.
17.] The United States moved for interim detention, and Mr.
Tate failed to overcome the heavy defense burden, so he was
detained. Id. On July 15, 2019, Judge Ingram held a
final revocation hearing, where Mr. Tate competently entered
a knowing, voluntary, and intelligent stipulation to
Violation #1. [R. 20 at 1.] The United States moved to
dismiss Violation #2. Id.
Mr. Tate's criminal history category of I and a Grade B
violation, Judge Ingram calculated his Guidelines Range to be
four (4) to ten (10) months. [R. 23 at 5.] The United States
requested revocation and an above-guidelines sentence of
twelve (12) months followed by one year of supervised
release, which would run concurrently with Mr. Tate's
state imposed twelve-month drug rehabilitation. Id.
Mr. Tate requested eight (8) months of imprisonment and
twelve (12) months of supervised release. Id. The
government argued the leniency that has been granted to Mr.
Tate in the past warrants an above-guidelines sentence
because he has seriously breached the Court's trust.
Id. at 6. The defense argued first that because Mr.
Tate has been in Wayne County jail for four months, an
eight-month sentence would be, in effect, twelve months'
incarceration. Id. Further, though Mr. Tate has
received multiple opportunities for drug treatment, the
defense asserted he is an addict who has a self-medication
problem, but he hopes to stay away from prescription opiates
moving forward. Id. at 6-7.
consideration of the nature and circumstances of Mr.
Tate's conviction, as well as his history and
characteristics, Judge Ingram found revocation to be
appropriate as well as required under 18 U.S.C. §
3583(g)(1) and U.S.S.G. § 7B1.3(a)(1). Id. at
7. Judge Ingram noted the seriousness of Mr. Tate's
underlying offense, and that because this violation also
involves methamphetamine, concern is warranted that he could
fall back into trafficking drugs again. Id. at 8.
Mr. Tate's addiction controls the consideration of his
history and characteristics. Id. He suffers from
chronic pain and uses prescription opioids and
methamphetamine to self-medicate. Id. Regarding the
need to protect the public and deter criminal conduct, Judge
Ingram found a ten-month sentence sufficient to protect the
public from further drug trafficking and send a clear message
to Mr. Tate. Id.
this Court echoes Judge Ingram's concern about this
breach of the Court's trust. Id. Mr. Tate has
continually self-medicated and now his addiction has
escalated to include methamphetamine. In the face of the
leniency this Court has granted Mr. Tate in the past, he has
seriously breached the level of trust that is necessary
during his period of supervised release. Id.
Therefore, the Court agrees with and adopts Judge
Ingram's finding that a period of ten months of
incarceration is sufficient, but not greater than necessary,
to reflect the § 3553(a) factors. Id. at 8-9.
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. Tate has filed a waiver of
allocution. [R. 24-1.]
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. 23] as to
Defendant Stephen Tate, is ADOPTED as and
for the Opinion of the Court;
Tate is found GUILTY of Violation #1;
Violation #2 is DISMISS ...