United States District Court, S.D. Indiana, Indianapolis Division
ORDER ADOPTING REPORT AND RECOMMENDATION
EVANS BARKER, JUDGE
before the Court is an Objection to Report and Recommendation
on the Petition for Warrant or Summons for Offender Under
Supervision filed by Defendant Roger Richardson. For the
reasons set forth herein, the Court OVERRULES
Defendant's objection and ADOPTS the Magistrate
Judge's Report and Recommendation [Dkt. 492] as discussed
January 16, 2008, Mr. Richardson was charged by superseding
indictment with one count of conspiracy to possess with
intent to distribute and to distribute five or more kilograms
of cocaine and one count of possession with intent to
distribute 500 grams or more of a mixture or substance
containing cocaine, all in violation of Title 21, United
States Code, Section 841(a)(1). On April 15, 2008, Mr.
Richardson entered a petition to enter a guilty plea as to
the conspiracy charge and the possession charge was
subsequently dismissed by the government. Mr. Richardson
appeared for a change of plea and sentencing hearing on June
30, 2008 and was sentenced to 120 months of incarceration and
five years supervised release.
Mr. Richardson finished serving his sentence, his term of
supervised release commenced on April 3, 2015. On November
16, 2017, the United States Probation Office filed a Petition
for Warrant or Summons for Offender Under Supervision, on
which the Magistrate Judge held a preliminary hearing on
December 22, 2017. At the hearing, Mr. Richardson moved to
hold the petition in abeyance pending resolution of the
underlying allegations of violations and the Court granted
the same. The Magistrate Judge conducted a final revocation
hearing on November 13, 2019, at which Mr. Richardson
admitted to violating his conditions of supervision,
specifically, that he not commit another federal, state, or
local crime, given that he was arrested on November 14, 2017,
and being charged with Dealing in Cocaine (10 or More Grams),
felony, and Possession of Cocaine (28 or More Grams), felony,
in Marion County, Indiana. At the time of Mr.
Richardson's arrest, a search by law enforcement of his
residence, vehicle and person revealed, inter alia,
suspected crack cocaine in excess of 234 grams, digital
scales, $3, 440.00 in U.S. currency, and a glass Pyrex dish
with suspected cocaine residue.
Magistrate Judge recommended that Mr. Richardson's
supervised release be revoked and that he be incarcerated for
thirty (30) months to be served consecutively to the sentence
imposed under 1:17-cr-0246-TWP-MJD-1, with no additional
supervised release to follow. On December 4, 2019, Mr.
Richardson filed an Objection to the Report and
Recommendation of the Magistrate Judge, which is now ripe for
the Court's consideration.
Rule of Criminal Procedure 59(b)(3) provides that the Court
will review recommendations on dispositive motions de
novo. Under de novo review, the Court is free
to accept, reject, or modify the recommended disposition.
Fed. R. Crim. P. 59(b)(3). “De novo review
requires the district judge to decide the case based on an
independent review of the evidence and arguments without
giving any presumptive weight to the magistrate judge's
conclusion.” Mendez v. Republic Bank, 725 F.3d
651, 661 (7th Cir. 2013). Although no deference is owed to a
magistrate judge's recommendation under the de
novo standard, Blake v. Peak Prof. Health Servs.
Inc., 1999 WL 527927, at *2 (7th Cir. 1999), it is
important to remember that this Court is essentially
functioning as an appellate court in this context. Thus, even
under de novo review, “arguments not made
before a magistrate judge are normally waived.”
United States v. Melgar, 227 F.3d 1038, 1040 (7th
Cir. 2000). As the Seventh Circuit Court of Appeals has
observed, “there are good reasons for the rule, ”
even in the context of de novo review. Id.
Failure to fully develop arguments before the magistrate
judge may prejudice a party, and “a willingness to
consider new arguments at the district court level would
undercut the rule that the findings in a magistrate
judge's report and recommendation are taken as
established unless the party files objections to them.”
Richardson objects to the Magistrate Judge's
consideration of the factors set forth in 18 U.S.C. §
3553(a), arguing that certain of those factors, namely, his
acceptance of responsibility in this and related cases as
well as the nature and circumstances of the offense, were not
fully or fairly considered by the Magistrate Judge. Mr.
Richardson maintains that, when properly considered, the
§ 3553(a) factors would support a finding either that a
sentence to run concurrently with the sentence in
1:17-cr-0246-TWP-MJD-1 or a consecutive sentence below the
relevant guideline range is appropriate. The government has
not responded to Mr. Richardson's objection.
de novo consideration of the § 3553 factors, we
hold that a 30-month sentence of incarceration to run
consecutively to the sentence imposed in
1:17-cr-0246-TWP-MJD-1, as recommended by the Magistrate
Judge, is appropriate. We find it significant that, after
serving a 120-month sentence for the original offense, Mr.
Richardson returned to the same criminal conduct within two
years following his release, all while under supervision. Mr.
Richardson argues that because his acceptance of
responsibility in this and related cases was significant, a
concurrent or consecutive sentence below the guideline range
is warranted. However, as discussed in detail by the parties
at the revocation hearing, Mr. Richardson's acceptance of
responsibility had already been appropriately factored into
the 120-month sentence he received in 1:17-cr-0246-TWP-MJD-1.
For these reasons, as well as the fact that supervised
release restrictions were not previously effective in
deterring Mr. Richardson from reoffending, we hold that a
30-month sentence of incarceration, which reflects the low
end of the applicable guideline range, is sufficient, but not
greater than necessary, to comply with the purposes set forth
in § 3553(a)(2).
foregoing reasons, the Court OVERRULES Mr.
Richardson's Objection to Report and Recommendation and
ADOPTS the Magistrate ...