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United States v. Brock

United States District Court, E.D. Kentucky, Southern Division, London

October 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TIM W. BROCK, Defendant.

          ORDER

          Gregory F. Van Tatenhove United States District Judge.

         This matter is before the Court on the Report and Recommendation filed by United States Magistrate Judge Hanly A. Ingram. [R. 233.] Defendant Tim W. Brock has been charged with four violations of the terms of his supervised release. Id. at 1.

         Judgment was originally entered against Mr. Brock in February 2013 following a guilty plea to one count of conspiracy to distribute and possession with intent to distribute less than 50 kilograms of marijuana. Id. He was sentenced to 77 months of incarceration followed by four years of supervised release. [R. 168.] Brock began his term of supervised release on November 7, 2017. [R. 233 at 1.] Among other conditions, Brock's terms of supervision included that he not commit another federal, state, or local crime, that he notify his probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer, that he not leave the District without permission of the Court or the probation officer, and that he consume no alcohol. Id. at 2-3.

         On July 16, 2019, Brock was arrested by the Claiborne County, Tennessee Sheriff's Office and charged with driving under the influence, in violation of Tenn. Code Ann. § 55-10- 401. Id. at 1-2. According to the state charges filed, Claiborne County Sheriff's Deputy Jeff Green was dispatched to a boat dock at an area campground on the report of an intoxicated male who had run a car into two parked vehicles. Id. at 2. Upon arrival, Deputy Green found Brock asleep in the vehicle with the car off but keys in the ignition. Id. At this time, Brock admitted to drinking “quite a bit of alcohol” and to hitting one of the damaged parked vehicles. Id. After receiving these admissions and observing multiple indicators of excessive alcohol consumption, Deputy Green arrested Brock. Id.

         At the final revocation hearing, held on August 19, 2019, Brock competently entered a knowing, voluntary, and intelligent stipulation to three of the four violations as charged by the USPO in the Supervised Release Violation Report. [R. 231.] Brock did not admit to the first charged violation, which alleges that he violated the condition that requires he not commit another federal, state, or local crime.[1] After the presentation of evidence, including testimony from Deputy Green, Magistrate Judge Ingram found that Violation One had occurred. Id. at 1.

         The parties did not offer a jointly recommended sentence; the United States argued for eleven months, while defense counsel argued for ninety days. [R. 233 at 6.] Additionally, the United States proposed a three-year term of supervised release, and the defense counsel proposed two years. Id.

         On August 22, 2019, Judge Ingram issued a Recommended Disposition which recommended revocation of Brock's supervised release and a term of eight months of imprisonment followed by a two-year term of supervised release. Id. at 7. Judge Ingram appropriately considered the record and the relevant §§ 3553 and 3583(e) factors in order to determine an appropriate revocation term of imprisonment. [R. 233 at 5-10.] Judge Ingram noted that Brock's criminal history, “particularly his history of crimes involving alcohol, ” was troubling. Id. at 9. Furthermore, the conduct underlying this set of violations was serious and dangerous. Brock ignored various terms of his supervised release and placed the public and others' property in danger by driving while intoxicated. Id. It is important that Brock understand the severity of his actions and the need to avoid the consumption of alcohol or drugs. Id.

         The primary wrong when an offender violates is his breach of the Court's trust. Prior to this set of violations, however, Brock had done well on supervision for over nineteen months and had not violated any terms of his supervised release. Id. at 10. Judge Ingram also pointed to additional mitigating factors, including the fact that Brock was dealing with the recent death of his sister at the time of the violations. Id. at 7, 8. Further, Brock's conduct underlying these violations was not closely related his underlying conviction, conspiracy to distribute and possession with intent to distribute marijuana. Id. at 8-9. A sentence at the bottom of the Guidelines Range is appropriate in this instance.

         Pursuant 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. [R. 233 at 10; 28 U.S.C. § 636(b)(1).] No objections have been filed, and Defendant Brock submitted a waiver of allocution. [R. 234.] 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. Walters, 638 F.2d 947 (6th Cir. 1981). Nevertheless, this Court has examined the record and agrees with Magistrate Judge Ingram's Recommended Disposition. Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:

         1. The Report and Recommendation [R. 233] as to Defendant Tim W. Brock is ADOPTED as and for the Opinion of the Court;

         2. Defendant Brock is found to have violated the terms of his Supervised Release as set forth in the Report filed by the U.S. Probation Officer and the Recommended Disposition of the Magistrate Judge;

         3. Mr. Brock's Supervised Release is REVOKED;

         4. Mr. Brock is SENTENCED to the Custody of the Bureau of Prisons for a term of eight months of imprisonment, ...


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