United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, District Judge.
On March 5, 2014, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Report that Defendant Marco Finnell had violated conditions of his supervised release. Defendant was present in Court and represented by Christopher L. Jackson, and the Government was represented by Assistant United States Attorney Jason Denney. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV_2-06-cr-85-DLB-JGW-001-20140305_092147; the official record of this proceeding was certified by Linda S. Tierney, Deputy Clerk.
Upon call of this matter at the Final Revocation Hearing, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to plead guilty to violation number 1 as set forth in the February 24, 2014, Violation Report of U.S. Probation Officer Stacey Suter and, in exchange, the Government agreed to dismiss violation numbers 2 and 3, and to recommend a sentence of 18 months of imprisonment with a 4-year term of supervised release to follow. For the reasons that follow, the parties' agreement is an appropriate disposition of this matter, and therefore it will be recommended that Defendant's supervised release be revoked and that he be sentenced to an 18-month term of imprisonment, with a 4-year term of supervised release to follow.
I. Procedural Background
On April 20, 2007, Defendant pleaded guilty to Possession with Intent to Distribute Crack Cocaine in violation of 21 U.S.C. § 841(a)(1). (R. 27). On August 7, 2007, the presiding District Judge sentenced Defendant to a 72-month term of imprisonment with 6 years of supervised release to follow. (R. 31, 36).
On January 25, 2012, Defendant was released from prison to begin his term of supervision. (R. 44). On February 14, 2012, Defendant reported to the probation office as instructed, and prior to collection of a urine specimen, he admitted to smoking marijuana four days previously. At that time, Defendant was staying with his girlfriend, whom the probation officer subsequently learned is a convicted felon, but Defendant failed to disclose this fact to the probation officer in further violation of his conditions of release. ( Id. ). As a result of these violations, Defendant agreed to have his supervision modified to include 12 weekends in jail. ( Id. ). The Court agreed to the modification. ( Id. ).
On April 13, 2012, Defendant was before the Court on additional violations of his supervision as set forth in the Probation Officer's Petition for Warrant for Offender Under Supervision, which included claims that he violated the following conditions: 1) Defendant shall report as instructed; 2) Defendant shall notify his probation officer at least 10 days prior to any change in employment, 3) Defendant shall participate in substance abuse treatment at the direction of the probation officer; 4) Defendant shall report to the probation office and submit a truthful written report; and 5) Defendant shall not use any controlled substance, except as prescribed by a physician. (R. 45). On April 16, 2012, United States Magistrate Judge Wehrman found Defendant violated the terms of his supervised release and recommended that Defendant's supervision be revoked and that he be sentenced to a 12-month term of imprisonment with 4 years of supervision to follow. (R. 51) On May 4, 2012, the presiding District Judge adopted the Report and Recommendation and so sentenced Defendant. (R. 53, 54).
On April 10, 2013, Defendant was released from prison to begin his term of supervision. (R. 55). On August 15, 2013, United States Probation Officer Stacey Suter submitted a Petition for Warrant for Offender Under Supervision (R. 55), notifying the presiding District Judge that Defendant had not complied with conditions of his supervision by committing two state or local crimes and possessing paraphernalia related to controlled substances, to wit a set of scales. ( Id. ). Probation Officer Suter requested a warrant issue for Defendant's arrest, for him to be called upon to address why his supervision should not be revoked. ( Id. ). A warrant was subsequently issued.
Defendant now stands before this Court charged with these three violations of his supervised release conditions. These charged violations were presented to the Court by Violation Report of February 24, 2014. As discussed above, during the Final Revocation Hearing, counsel informed the Court that the parties had reached an agreement: Defendant was prepared to plead guilty to violation number 1 as set forth in the Violation Report, and the Government agreed to dismiss violation numbers 2 and 3. The parties also agreed on a recommended sentence of 18 months.
The undersigned explained to Defendant the statutory maximum terms of incarceration and supervised release as well as the applicable guideline range. The undersigned further explained that while a recommendation of an appropriate sentence will be made to the presiding District Judge, it is ultimately the decision of the presiding District Judge as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to plead guilty to violation number 1 set forth in the February 24, 2014, Violation Report of the United States Probation Officer. Defendant waived his right to allocution.
The undersigned is satisfied from the dialogue with Defendant that he understands the nature of violation number 1 as charged, he has had ample opportunity to consult with counsel, and that he enters his guilty plea to violation number 1 knowingly and voluntarily. Therefore, based on Defendant's plea of guilty to the violation, the undersigned finds and will recommend that the District Court find that Defendant has violated a condition of his supervised release as charged in violation number 1. The Court will also recommend that the District Judge grant the United States' oral Motion to Dismiss violation numbers 2 and 3. The only issue remaining is the appropriate sentence to impose for the admitted violation.
The Court may revoke a term of supervised release after finding that a defendant has violated a condition of supervised release. See 18 U.S.C. § 3583(e)(3). Upon revocation, a court should impose a sentence that is sufficient, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a). See id. § 3583(e). The sentencing court is to consider:
1. The nature and circumstance of the offense and the history and characteristics of the Defendant, ...