USA v. Malone

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA
v. 	CASE NO. 5:12-cr-50050
CODY JAMES MALONE
ORDER
PLAINTIFF
DEFENDANT
Currently before the Court is the Report and Recommendation (''R&R") (Doc. 35)
filed on July 17, 2017, by the Honorable Erin L. Wiedemann, United States Magistrate
Judge for the Western District of Arkansas, regarding Defendant's Motion to Modify
Sentence (Doc. 33). Also before the Court is Defendant's objection to Magistrate Judge
Wiedemann's R&R (Doc. 36). 	For the reasons given below, the R&R is ADOPTED and
the Defendant's Motion to Modify is DENIED.
"Federal Rule of Civil Procedure 72(b)(2) allows a party to file [specific] objections"
to a magistrate judge's 	report and 	recommendation. 	Torres 	v. 	Colvin, 	2014 WL
12569339, at *1 (W.D. Ark. Feb. 26, 2014). A district court may then review the magistrate
judge's report and 	recommendation and 	any pertinent objections. 	See 28 U.S.C.
§ 636(b)(1) ("A [district] judge ... shall make a de novo determination of those portions
of the [magistrate's] report or specified proposed findings or recommendations to which
objection is made. 	A judge ... may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge."). 	De novo review grants a
reviewing court the right to conduct an "independent review" of the matter. Salve Regina
College v. Russell, 499 U.S. 225, 238 (1991) (citing Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485, 501 (1984)).
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In Branch v. Martin, the Eighth Circuit indicated that de novo review is only required
if a party's objections are "specific enough to trigger de novo review." 	886 F.2d 1043,
1046 (8th Cir. 1989). 	Absent any specific objection, a district court should review a
magistrate judge's report and recommendation for clear error. 	Grinder v. Gammon, 73
F.3d 793, 795 (8th Cir. 1996). 	However, in Belk v. Purkett the same court "emphasized
the necessity of de novo review" and established that "retention by the district court ...
over the ultimate disposition of matters" is preferred. 	15 F.3d 803, 815 (8th Cir. 1994)
(asserting that, even if an objection lacks specificity, a district court should conduct de
novo review in matters where the record is brief); Hudson v. Gammon, 46 F.3d 785, 786
(8th Cir. 1995) (noting that§ 636(b)(1) should be "liberally construed" to require de novo
review in a majority of instances in which a party objects to a magistrate judge's report
and recommendation).
Defendant asked for his time served in state custody to run concurrent to his
federal sentence. 	(Doc. 33) ("I was convicted by the state ... with the Judge[']s orders
to run my time concurrent in the Federal Bureau of Prisons."). 	The R&R properly noted
that a state court's intent is not binding on federal courts. 	See Doc. 35, p. 3 (citing Elwell
v. Fisher, 716 F.3d 477, 482 (8th Cir. 2013)). 	Defendant's objection does not challenge
Magistrate Judge Wiedemann's R&R on its face and thus does not merit de novo review.
See Doc. 36. 	It appears that Defendant simply requests the opportunity to petition the
Bureau of Prisons to designate a location for him to serve his federal sentence, which is
his prerogative. 	Id. 	Nevertheless, pursuant to Belk and out of an abundance of caution,
the Court has conducted a de novo review of the record and adopts Magistrate Judge
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Wiedemann's R&R. 	15 F.3d at 815 (citing Branch, 886 F.2d at 1046) ("Failure to conduct
de novo review when required is reversible error.")
For the foregoing reasons, the Court finds that Magistrate Judge Wiedemann's
R&R is proper and should be and hereby is ADOPTED IN ITS ENTIRETY. 	Accordingly,
for the reasons stated in Magistrate Judge Wiedemann's R&R, Defendant's Motion to
Modify (Doc. 33) is DENIED. 	~
IT IS SO ORDERED on thislli ay of Septembe,
OKS
DISTRICT JUDGE
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