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.
131.] Defendant Thomas W. Maxwell has been charged with two
violations of his supervised release. Id. at 2-3.
December 1, 2010, this Court sentenced Mr. Maxwell to
thirty-seven months imprisonment for failure to register as a
sex offender. [R. 27; R. 28.] He began his lifetime term
of supervised release on February 19, 2013. [R. 131 at 1.]
Shortly thereafter, on June 20, 2013, Mr. Maxwell was
arrested for violations of his supervised release. [R. 52.]
The United States Probation Office (USPO) charged him with
failing to obtain pre-approval for his residence and
associating with a convicted felon without permission, later
amending the violations to include leaving the judicial
district without permission, failing to register as a sex
offender, and committing another crime. [R. 131 at 1.] He
stipulated to these violations, and this Court sentenced him
to an additional eighteen months imprisonment. [R. 73; R.
Maxwell was released on October 22, 2014, to resume his
lifetime term of supervised release. [R. 131 at 2.] Less than
a month later, the USPO charged him with use of a computer or
device with access to online computer service, later amending
the charges to include failure to comply with Kentucky sex
offender registration. [R. 75; R. 76.] Again, he stipulated
to these violations, and the Court sentenced him to
twenty-four months imprisonment. [R. 86; R. 87.] He finished
this term on December 13, 2016, spent two months on
supervised release, and then was charged by USPO with using
two smartphones without permission. [R. 97.] The Court
sentenced him to another twenty-four months imprisonment. [R.
110; R. 111; R. 112.] He was released for his fourth time on
January 4, 2019. [R. 131 at 2.]
to the Supervised Release Violation Report (the Report)
issued by the USPO on May 31, 2019, Mr. Maxwell has committed
two violations of his supervised release conditions.
Id. Mr. Maxwell had given USPO two phone numbers by
which to contact him, representing that both numbers were
landlines. Id. However, upon further investigation,
USPO determined one of the numbers to belong to a smartphone.
Id. When confronted, Mr. Maxwell confirmed he had
purchased and used the smartphone. Id. Use of a
device with access to the internet without prior approval by
the USPO is a Grade C Violation. Additionally, Mr.
Maxwell's supervised release requires him to participate
in a treatment program for mental health and sexual
disorders. [R. 112 at 5.] However, the Report alleges that
Mr. Maxwell failed to attend his treatment on May 24, 2019.
[R. 131 at 3.] He told the provider that he had overslept,
and that he would no longer be attending the group sessions.
Id. This is also a Grade C Violation.
his initial appearance before Magistrate Judge Hanly A.
Ingram on June 7, 2019, Mr. Maxwell knowingly, voluntarily,
and intelligently waived his right to a preliminary hearing.
[R. 119.] The United States moved for interim detention and
Mr. Maxwell did not object. Id. Judge Ingram
determined detention was appropriate, as he had failed to
overcome the burden for release under Rule 32.1(a)(6) and 18
U.S.C. § 3143(a). Id.
this hearing, the USPO filed an Addendum to the Report,
charging him with a violation of the condition that Mr.
Maxwell was forbidden to use a device with access to the
internet. [R. 131 at 3.] Mr. Maxwell was incarcerated, and
when a Probation Officer visited his residence, Mr.
Maxwell's roommate showed the officer the phone “in
plain view, next to Mr. Maxwell's bed.”
Id. A search of this phone showed visits to several
pornography websites and a photograph recovered from the
phone showed a topless female who appeared to be between the
ages of fourteen and eighteen. Id. at 3-4. Judge
Ingram conducted an initial appearance on this Addendum on
June 20, 2019. [R. 121.] Again, Mr. Maxwell knowingly,
voluntarily, and intelligently waived his right to a
preliminary hearing and he was remanded to custody.
then, on July 1, 2019, the USPO issued a Second Addendum. [R.
131 at 4.] Upon further search of the confiscated phone, the
USPO observed an image “of a male with his hand around
a female's neck, in a choking manner, while she performed
a sexual act.” Id. Mr. Maxwell's
conditions of supervised release prohibit him from possessing
or viewing pornography that depicts violence, sexual assault,
or rape. [R. 112 at 5.] Based on the observed image, the
Second Addendum charged Mr. Maxwell with violation of this
condition, a Grade C Violation. [R. 131 at 4.] Judge Ingram
conducted a third initial appearance for Violation #4, where
Mr. Maxwell knowingly, voluntarily, and intelligently waived
his right to a preliminary hearing and was remanded to
custody. [R. 123.] Judge Ingram held a final revocation
hearing for all four violations on July 29, 2019, where Mr.
Maxwell competently entered a knowing, voluntary, and
intelligent stipulation to Violations #1, #2, and #3, while
the Government moved to dismiss Violation #4. [R. 126.]
Mr. Maxwell's criminal history category of V and Grade C
violations, Judge Ingram calculated his Guidelines Range to
be seven to thirteen months. [R. 131 at 5.] The United States
requested revocation and an above-guidelines sentence of
twenty-four months, while Mr. Maxwell argued for thirteen
months. Id. The Government argued this upward
departure was justified by the need to protect the public, as
Mr. Maxwell has repeatedly violated his supervision and shown
a propensity for violence and sexual misconduct. Id.
at 6-7. Since he was nineteen years old, Mr. Maxwell has not
gone a single year out of prison without violating his
supervision or a criminal conviction. Id. at 7. This
is his fourth federal revocation, but he repeatedly violated
his state probation in the past as well. Id. Counsel
for Mr. Maxwell argued for a sentence at the top of the
Guidelines, citing Mr. Maxwell's mental health.
Id. Also, at the final hearing, the USPO requested
revision of the special condition related to
“restricted materials, ” to which neither party
Ingram noted that Mr. Maxwell has been sentenced to
thirty-seven, eighteen, twenty-four, and twenty-four months
for this conviction and subsequent revocations, totaling 103
months. Id. at 8. An additional twenty-four months
for this revocation would exceed the statutory maximum
sentence of ten years for his underlying conviction.
Id. Both sides submitted supplemental briefing.
Id. According to the Sixth Circuit, a revocation
sentence exceeding the statutory maximum would be proper
because different statutes govern the original sentence and
the revocation sentence. United States v. Wright, 2
F.3d 175, 179 (6th Cir. 1993.) As the Sixth Circuit
explained, a defendant can be sentenced to a statutory
maximum sentence for the underlying conviction, but still be
subject to supervised release revocation. Id. at
consideration of the nature and circumstances of Mr.
Maxwell's conviction, as well as his history and
characteristics, Judge Ingram found revocation to be
appropriate. Id. at 10-11. Judge Ingram noted the
seriousness of Mr. Maxwell's underlying offense, as well
as the repeated violations, each shortly after his release.
Id. Because of these repeated violations and failure
to be honest with the USPO, Judge Ingram recommended a
twenty-four months sentence to protect the public and deter
criminal conduct. Id. The conditions of Mr.
Maxwell's supervised release are designed to protect the
most vulnerable members of our society from sex offenders,
and Mr. Maxwell has repeatedly failed to comply with these
this Court echoes Judge Ingram's concern about this
breach of the Court's trust. This marks the fourth
revocation of Mr. Maxwell's supervised release, all for
similar breaches of the Court's trust. Id. at
10. For the previous violation, the Court imposed an
above-Guidelines sentence of twenty-four months, yet Mr.
Maxwell has chosen to again flout his obligations of his
supervised release. Thus, the Court agrees with and adopts
Judge Ingram's finding that incarceration for a period of
twenty-four months, an upward variance, is sufficient, but
not greater than necessary to reflect the § 3553(a)
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).
Mr. Maxwell has indicated he has no objections to Judge
Ingram's Report and Recommendation and has filed a waiver
of allocution. [R. 132.] He does request that the Court
recommend to the Bureau of Prisons that he complete his
prison term in a facility located in either Marion, Illinois,
or Tucson, Arizona. Id.
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 ...