U.S. v. Hamilton

Full title: UNITED STATES OF AMERICA, Plaintiff, v. KENNY DARRYL HAMILTON, Defendant

Court: United States District Court, E.D. Kentucky, Southern Division Pikeville

Date published: Nov 17, 2010

Criminal No. 07-34-GFVT (E.D. Ky. Nov. 17, 2010)

Opinion

Criminal No. 07-34-GFVT.

November 17, 2010

ORDER

GREGORY TATENHOVE, District Judge

This matter is before the Court upon the Report and Recommendation [R. 740] filed by Magistrate Judge Atkins. Therein, Judge Atkins recommends that the Court deny the Defendant's Motion to Vacate his sentence [R. 669] and grant the United States' Motion to Dismiss [R. 697]. Judge Atkins further advised the parties that any objections to the Report and Recommendation must be filed within fourteen (14) days of service. As of this date, neither party has filed objections nor sought an extension of time to do so.

Generally, 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). When no objections are made, 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'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 (6^th Cir. 1981). Nevertheless, this Court has examined the record, and it agrees with the Magistrate Judge's recommendation.

In his motion to vacate, set aside, or correct his sentence, Hamilton sought relief based on the Government's alleged failure to comply with terms of the plea agreement. According to Hamilton, the United States failed to file a Fed.R.Crim.P. 35(b) motion to reduce Hamilton's sentence. While the motion to vacate was pending, however, the United States filed such a motion [R. 692] and the Court ultimately reduced Hamilton's sentence [see R. 736, 739]. Hamilton now concedes that his motion to vacate is moot.

Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:

1. The Magistrate Judge's Report and Recommendation [R. 740] is ADOPTED as and for the opinion of the Court; and

2. The Defendant's Motion to Vacate [R. 669] is DENIED as moot;

3. The United States' Motion to Dismiss is GRANTED.

This the 17^th day of November, 2010.