United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On November 13, 2014, this matter came before the Court for a Final Revocation Hearing on the U.S. Probation Office's Report that Defendant Bradley Wilson had violated conditions of his supervised release. Defendant was present in Court and represented by James M. West, and the Government was represented by Assistant U.S. Attorney Robert K. McBride. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV_2-12-cr-23-DLB-CJS-002-20141113_105858; the official record of this proceeding was certified by Linda Tierney, Deputy Clerk.
On August 24, 2012, the Defendant pled guilty to counterfeiting United States' obligations in violation of 18 U.S.C. § 471. (R. 41). On December 6, 2012, the presiding District Judge sentenced Defendant to fifteen months of incarceration with a thirty-six-month term of supervised release to follow. (R. 55). Defendant's period of supervision first began on August 9, 2013.
On August 30, 2013, Defendant's number was listed on the drug screen line, and Defendant failed to appear for a drug test on that date. On September 3, 2013, he reported to the Probation Office and admitted he heard his number on the drug test line, but stated he was confused by the listing of multiple numbers on the message. On October 2, 2013, Defendant provided a diluted urine sample for testing. On October 9, 2013, he again provided a diluted urine sample for testing despite the probation officer's instructions not to drink excessively before testing. On October 9, 2013, Defendant submitted to a drug screen, which tested positive for marijuana.
On October 17, 2013, the presiding District Judge ordered, after a Petition for alleged violations of supervised release was presented by the U.S. Probation Officer, that a warrant be issued for Defendant to appear before the undersigned to answer for the violations. On October 28, 2013, Defendant was before the Court for a final supervised release revocation hearing. (R. 66). At that time, counsel informed the Court that the parties had reached an agreement. Pursuant to the agreement, Defendant pled guilty to violating the conditions of his supervised release as set forth in the October 17, 2013, violation report of U.S. Probation Officer Leanne M. Vonderhaar, and the Government recommended a five-month term of incarceration with a thirty-one month term of supervised release to follow. (R. 69). The parties further agreed that if Defendant had no violations after twelve months of supervised release and the restitution amount of $910 was paid in full, a request for early termination of supervised release would be presented to the Court. The undersigned recommended the agreed sentence to the presiding District Judge. (R. 69). On November 13, 2013, the presiding District Judge adopted the undersigned's Report and Recommendation, and sentenced Defendant consistent with the parties agreement. (R. 71). Defendant's most recent term of supervision commenced on March 21, 2014.
On October 22, 2014, the Probation Officer Vonderhaar submitted a Violation Report again setting forth circumstances of Defendant's failure to abide by conditions of his supervision. Specifically, Defendant failed to show for six scheduled counseling sessions from May 28, 2014, to September 30, 2014, and was ultimately terminated from counseling services due to his lack of motivation to attend sessions. On October 7, 2014, Defendant failed to report for a drug screen, and when contacted by his probation officer on October 8, 2014, he said he forgot to call the drug test line as required. The probation officer instructed Defendant to report by close of business on October 8, 2014, or October 10, 2014, to discuss his noncompliance. The probation officer reported that as of October 22, 2014, Defendant had failed to report as instructed and failed to contact the probation officer. Defendant also failed to submit his monthly report as required and has not paid restitution as ordered.
On October 27, 2014, the presiding District Judge ordered that a summons be issued for Defendant to appear before the undersigned to answer for these violations. On October 31, 2014, Defendant appeared before the undesigned for an initial appearance on supervised release violation. (R. 78). At that hearing, the Court set the final revocation hearing for November 13, 2014, and permitted Defendant to remain on his release status pending the final hearing. At the conclusion of the initial appearance proceeding, the Court instructed Defendant to report to the U.S. Marshal's Office for processing and to report to the U.S. Probation Office for a drug screen prior to leaving the courthouse. Defendant failed to report to either office as instructed and, instead, left the courthouse without complying with the Court's instructions.
In response to Defendant's failure to submit to a drug screen on October 31, 2014, the United States filed a Motion to Revoke Bond and for an Arrest Warrant. (R. 77). In addition, on November 3, 2014, the U.S. Probation Officer provided the Court with an Addendum to the October 22, 2014, Supervised Release Violation report, charging Defendant with an additional violation. On November 3, 2014, the Court granted in part the United States' Motion as to its request for an arrest warrant and stated it would take up Defendant's release status upon his arrest and appearance before the Court. (R. 80).
On November 12, 2014, Defendant turned himself in to authorities and now stands before this Court charged with the following violations:
Violation No. 1: The defendant shall participate in substance abuse treatment program at the direction and discretion of the probation officer.
Violation No. 2: The defendant shall submit to periodic drug and alcohol testing at the direction of the probation officer.
Violation No. 3: The defendant shall report to the probation officer in a manner and frequency directed by the probation officer and shall follow the ...