United States District Court, Eastern District of Kentucky, Southern Division
November 3, 2014
UNITED STATES OF AMERICA, Plaintiff,
BRANDEN RAY SUTTON, Defendant
For USA, Plaintiff: William Samuel Dotson, LEAD ATTORNEY, U.S. Attorney's Office - London, London, KY.
Hanley A. Ingram, United States Magistrate Judge.
On referral from District Judge Van Tatenhove (D.E. 311), the Court considers reported violations of supervised release conditions by Defendant Branden Ray Sutton. Judge Van Tatenhove entered a judgment against Defendant in February 2011 upon a plea of guilty for conspiracy to distribute oxycodone, a schedule II controlled substance, in violation of 21 U.S.C. § § 846 and 841(a)(1). D.E. 220. Defendant received a sentence of sixty-five months imprisonment followed by a thirty-six month term of supervised release. Id. at 2-3. Defendant began his supervised release term on January 28, 2014.
On October 1, 2014, the United States Probation Office (USPO) submitted a Supervised Release Violation Report (the " Report"), and six days later secured an arrest warrant from District Judge Van Tatenhove. D.E. 308. The Report charges Defendant with four violations. First, per the Report, Defendant violated Standard Condition No. 7 which proscribes controlled substance use when his urine tested positively for the presence of oxycodone via an instant testing device on September 19, 2014. Defendant acknowledged use of the drug by way of his completion of an Admission/Denial Report. This is a Grade C violation. Second, in relation to this positive drug test and admission, the Report charges Defendant with failure to refrain from committing another federal, state, or local crime. Noting the Sixth Circuit's decision that use of a controlled substance includes possession and Defendant's criminal history, Violation Two charges Defendant with conduct that would be a federal crime, that is, possession of oxycodone. Such conduct would be a Class E Felony pursuant to 21 U.S.C. § 844(a), Simple Possession of a Controlled Substance. This is a Grade B violation.
In Violation Three, the Report charges Defendant with a second violation of Standard Condition No. 7 based on another positive test for the presence of oxycodone on September 29, 2014. Defendant also acknowledged oxycodone use by completing a Positive Urinalysis Admission Report, including that he had used oxycodone intravenously. This is a Grade C Violation. In Violation Four, the Report charges that Defendant again violated federal law by, pursuant to Sixth Circuit case law, possessing oxycodone in violation of 21 U.S.C. § 844(a). This is a Grade B violation.
The Court conducted an initial appearance pursuant to Rule 32.1 on October 27, 2014, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 312. The United States moved for interim detention and Defendant did not argue for release. Id. Based on the heavy defense burden under 18 U.S.C. § 3143(a), the undersigned remanded Defendant to the custody of the United States Marshal. Id.
At the final hearing on October 29, 2014, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 314. Defendant competently entered a knowing, voluntary, and intelligent stipulation to all violations. Id. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for all violations as described in the Report. In the Supervised Release context, the Sixth Circuit treats controlled substance use as equivalent to possession. See United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000). The United States thus established Violations Two and Four under the standard of § 3583(e).
The Court has evaluated the entire record, the Supervised Release Violation Report and accompanying documents, and the sentencing materials from the underlying Judgment in this District. Additionally, the Court has considered all of the § 3553 factors imported into the § 3583(e) analysis. Under § 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Defendant pled guilty to conspiracy to distribute oxycodone in violation of 21 U.S.C. § 846, which is a Class C felony. See 21 U.S.C. § 841; 18 U.S.C. § 3559. For a Class C felony, the maximum revocation sentence provided under § 3583 is two years of imprisonment. 18 U.S.C. § 3583(e)(3). The Policy Statements in Chapter 7 of the Sentencing Guidelines provide advisory imprisonment ranges for revocation premised on criminal history (at the time of original sentencing) and the " grade" of the particular violation proven. See United States v. Perez-Arellano, 212 F.App'x 436, 438-39 (6th Cir. 2007) (" Although the policy statements found in Chapter Seven of the United States Sentencing Guidelines recommend ranges of imprisonment, U.S.S.G. § 7B1.4, such statements 'are merely advisory' and need only be considered by the district court before sentence is imposed.") (citation omitted). Under § 7B1.1, Defendant's admitted conduct would qualify as Grade C violations with respect to Violations One and Three and Grade B violations with respect to Violations Two and Four. Given Defendant's criminal history category of III (the category at the time of the conviction in this District) and Grade B violations, see U.S.S.G § 7B1.2(b) (" Where there is more than one violation of the conditions of supervision, or the violation includes conduct that constitutes more than one offense, the grade of the violation is determined by the violation having the most serious grade."), Defendant's range, under the Revocation Table of Chapter 7, is eight to fourteen months.
Based upon Defendant's stipulation, the parties agreed to recommend revocation with a sentence of one month imprisonment with thirty-six months of supervised release to follow. The parties further recommended, as an additional condition of release, completion of a residential substance abuse program as soon as possible upon release from prison. The United States offered that such a sentence was justified because the history and characteristics of the Defendant indicate that he was doing well before this set back and he has the potential to be a productive member of society. Further, the United States stated that the residential substance abuse program would address the underlying problem in the case: Defendant's substance addiction. Defense counsel confirmed that Defendant completed the Bureau of Prisions Residential Drug Abuse Program (" RDAP") while incarcerated and that it had worked for several months, but that Defendant's personal circumstances in recent months support this sentence. Specifically, child custody problems with two of his children led to the relapse and subsequent violations. Defense counsel further noted that Defendant has a strong vocational skill set as an automotive " body man."
At the outset, the Court notes that Congress does mandate revocation in a case of this nature. By statute, the Court must revoke Defendant because he possessed a controlled substance. See 18 U.S.C. § 3583(g)(1); see also United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000) (equating use with possession). The Sixth Circuit clearly and repeatedly has equated drug use with possession, and Defendant's admitted use in this context undoubtedly results in application of § 3583(g)(1). See United States v. Metcalf, 292 Fed.Appx. 447, 450 n.2 (6th Cir. 2008) (" Mandatory revocation was . . . warranted under § 3583(g)(1), as we have held that the use of a controlled substance constitutes possession under that subsection.") Furthermore, even though the parties are jointly requesting a sentence which deviates from the Guidelines Range, the Court '" must adequately explain the chosen sentence--including an explanation of any deviation from the Guidelines range.'" United States v. Johnson, 640 F.3d 195, 205 (6th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The Court is also required to '" consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" Id. (quoting Gall, 552 U.S. at 50). Finally, the Court must state '" the specific reason for the imposition of a sentence different from that described [in the applicable Guidelines or policy statements.]'" Id. (quoting 18 U.S.C. § 3553(c)(2)).
To determine an appropriate revocation term of imprisonment, the Court has considered all the statutory factors imported into the § 3583(e) analysis, as well as the Guidelines Range. The Court has carefully weighed the nature and circumstances of the offense and Defendant's particular history and characteristics. Defendant's drug problem is the primary concern that the sentence on revocation must address. His drug problem has led him to commit crimes and lie to his probation officer, and has placed significant hardships on his personal relationships with family and friends. The Court also recognizes a strong need to deter criminal conduct and protect the public.
The Court reminds Defendant that the Guidelines suggest that the primary wrong in the supervised release context is the violation of the Court's trust by an offender; the particular conduct is an important but secondary issue. See Guidelines 7 Pt. A(3)(b) (" [A]t revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator."). At Defendant's original sentencing, Judge Van Tatenhove was lenient in the form of a significant downward departure from Defendant's recommended Guidelines Range, indicating significant trust placed in Defendant. Leniency is sought again. Ordinarily, the Court very rarely would impose a sentence like the one recommended for Defendant's violations under such circumstances. Any further violations of supervised release conditions will likely be met with a sentence approaching the statutory maximum.
Ultimately, the Court finds that imprisonment is warranted, but that a sentence below the range described by the applicable Guidelines and Policy Statements is sufficient to reflect the seriousness of the violation, the gravity of the breach of the Court's trust, the need to protect the public, and the need to deter criminal conduct and the need to provide necessary treatment. See 18 U.S.C. § 3553(c). The Court has considered the need for drug treatment and believes that if Defendant can successfully complete the inpatient drug program and remain clean, he will be able to put his criminal history behind him and become a productive member of the community.
The Court must also consider the need to avoid unwarranted disparities in sentencing among similarly situated defendants. A term of one month imprisonment represents a seven month departure from the low end of Defendant's Guidelines Range. In recommending such a departure, the Court has considered the § 3583(e) factors and finds the departure warranted because the primary focus of the Court's sentence is Defendant's need for treatment. His struggle with addiction has been ongoing and Defendant has shown the desire and will to fight his addiction in the past. However, certain significant personal circumstances involving the custody of his children led to this relapse in his fight against his addiction. The Court finds that a month of imprisonment and successful completion of a residential substance abuse program as soon as possible upon release from prison followed by continuing supervision is sufficient, but not greater than necessary, to meet the statutory goals of sentencing at this stage for all the reasons described above.
A court may re-impose supervised release, following revocation, for a maximum period that usually subtracts any term of incarceration actually imposed due to the violation. See 18 U.S.C. § 3583(b) & (h). The post-revocation cap depends on the " term of supervised release authorized by statute for the offense that resulted in the original term of supervised release." See 18 U.S.C. § 3583(h). Given the nature of Defendant's convictions, pursuant to 21 U.S.C. § § 841(b)(1)(C) and 3583(h), there is no maximum period of time that Defendant can be placed on supervised release following revocation.
The Court finds that Defendant needs a significant amount of supervision following imprisonment to further learn to manage his addiction. Accordingly, the Court accepts the joint recommendation of the parties that a term of supervised release of thirty-six months be reimposed following imprisonment with the same conditions of Defendant's original Judgment (D.E. 220 at 3-4), and the added conditions that Defendant be required to complete a residential substance abuse treatment program as soon as possible following his term of imprisonment. Additionally, in the event there is any delay in placing Defendant in that program, he shall be drug tested at least weekly beginning upon his release from prison until enrolled.
Based on the foregoing, the Court RECOMMENDS:
1. Revocation with a term of imprisonment of one month; and
2. A term of supervised release of thirty-six months, under the conditions previously imposed at Docket Entry 220, with the additional conditions that Defendant complete a residential substance abuse treatment program as soon as possible upon release from prison and that in the event there is any delay in placing Defendant in that program, he shall be drug tested at least weekly beginning upon his release from prison until enrolled.
Defendant's right of allocution under Rule 32.1 is preserved, as reflected in the record. Any waiver should comport with the Court's standard waiver form, available from the Clerk. Absent waiver, the matter will be placed on District Judge Van Tatenhove's docket upon submission.
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning this recommendation, issued under subsection (B) of the statute. See also 18 U.S.C. § 3401(i). As defined by § 636(b)(1), within fourteen days after being served with a copy of this recommended decision, any party may serve and file written objections to any or all portions for consideration, de novo, by the District Court. Failure to make timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or review by the District Court and Court of Appeals. See United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).