United States District Court, E.D. Kentucky, Central Division, Lexington
ROBERT E. WIER, Magistrate Judge.
The Court, on referral, see DE #40, considers reported violations of supervised release conditions by Defendant, Brian Christopher Sims. The record reflects that this District convicted Sims of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), in March 2010. Judge Caldwell sentenced Sims to 63 months of imprisonment, followed by a two-year term of supervised release. Sims began his supervised release term on June 6, 2014.
The United States Probation Office (USPO) issued a Supervised Release Violation Report on December 29, 2014, and secured a summons from the District Judge on December 30, 2014. DE #35 (Order). Defendant appeared before the undersigned for initial proceedings under Federal Rule of Criminal Procedure 32.1 on January 22, 2015. DE #42 (Minute Entry).
At a final hearing, Defendant competently entered a knowing, voluntary, and intelligent stipulation to all of the charges (as contained within the Report), after the Court afforded Sims all rights due under Rule 32.1 and 18 U.S.C. § 3583. The parties presented a specific recommendation to the Court. Defendant allocuted, and USPO Key spoke in open court without objection.
The Report alleges that, on December 4, 2014, Sims submitted a urine sample that tested positive for marijuana and cocaine, as confirmed by Alere Laboratories. Sims submitted to a second drug test on December 18, 2014, which tested positive for marijuana, cocaine, and morphine. Again, Alere Laboratories confirmed the test result. Additionally, the Report charges that use of any of the substances (marijuana, cocaine, or morphine) is the legal equivalent of possession, and thus, on this record, felony conduct.
At the final Rule 32.1 hearing, Sims validly stipulated to all of the violations. The conduct confessed would violate the Judgment's restriction against controlled substance use and committing additional crime. DE #28 (Judgment). Defendant accepted responsibility at the final hearing and stipulated that, in the supervised-release context, each violation occurred as described. The stipulation and record, including the lab-verified test results, establish the violative conduct under Rule 32.1 and § 3583.
The Court has evaluated the full record, including the original conviction, the Presentence Investigation Report, and the Violation Report. The Court has considered all of the § 3553 factors imported into the § 3583(e)(3) analysis.
Under § 3583, a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Sims's § 922 conviction was for a Class C felony. 21 U.S.C. § 924(a)(2); 18 U.S.C. § 3559. For a Class C felony, the maximum revocation sentence provided under § 3583 is two (2) years of imprisonment. 18 U.S.C. § 3583(e)(3). The Policy Statements in Chapter 7 of the 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. United States v. Perez-Arellano, 212 F.Appx. 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(a)(2), the nature of Defendant's admitted conduct would qualify as a Grade B violation. With a criminal history category of VI (the category at the time of the conviction) and a Grade B violation, Defendant's range, under the Revocation Table of Chapter 7, is 21-24 months (with the statutory max becoming the Guidelines ceiling).
A court also may reimpose 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." 18 U.S.C. § 3583(h). The general supervision-term limits of § 3583(b) apply "[e]xcept as otherwise provided." Id. § 3583(b). In this instance, the potential reimposed supervised release term is not more than 3 years, less any term of incarceration imposed upon revocation. See 18 U.S.C. § 3583(b) & (h).
The Court has carefully weighed the nature and circumstances of the offense and Defendant's particular history and characteristics. Sims now fully admits to repeated improper use of controlled substances during his term of supervised release. Indeed, despite knowledge of the first positive drug test and his violation status, Sims used controlled substances again.
The parties and USPO Key spoke candidly in open court. Defense counsel highlighted Defendant's newly-secured employment at Pizza Hut, his desire to continue pursuing online college courses, as supported by an email tendered to the Court, and a proffer regarding ongoing monetary support of his out-of-state children. Counsel further noted Sims's responsiveness to USPO Key and counsel. AUSA Hawkins, on behalf of the United States, noted that the recent positive tests cannot be considered in a vacuum but must be viewed relative to Sims's overall criminal history and pattern of behavior. Per the Government, Sims's strides toward maintaining a stable residence, working, and being a productive and law-abiding citizen are worth a second chance, despite his overall negative record. Ms. Hawkins prosecuted Sims and sees much progress in him between 2010 and now. USPO Key aptly described Sims's situation as a "crossroads, " noting that now is the time to invest in him. Per Key, Sims has formally reached out for substance abuse treatment. USPO Key believes that, with intervention and some corrective measures, Defendant can become a positive contributor to society.
To be only 29 years old, Defendant's criminal history is astoundingly bad. It reflects involvement with drugs and guns from an early age. When he received the charge underlying the current conviction, he had been on state probation for a drug felony for less than 2 weeks. Further, upon his initial state arrest and booking, Defendant escaped from the detention center. Marijuana, cocaine, and firearms have pervaded Defendant's life to date. Sims's continued involvement with drugs needs attention, and his violative conduct warrants correction. Certainly, it would be easy (and likely justified) to revoke Defendant for a significant period of time. Notwithstanding his history, however, both parties and the USPO seek to provide Sims a second chance and more significant treatment opportunity. In light of all of the circumstances, the Court does find limited revocation warranted on the terms stated herein. The Court hopes that the combination of revocation, while enabling Sims to remain employed and seek treatment, while further being subject to tighter strictures of oversight, will steer him away from further criminal conduct and toward a lawful, productive, and positive life. Everyone sees something positive to build on in Sims-this is his chance to make good on the perception.
Per the USPO Report, and Defendant's own admissions, the Court, therefore, finds that Sims has violated two separate conditions of supervised ...