United States District Court, E.D. Kentucky, Southern Division, Pikeville
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EDWARD B. ATKINS, Magistrate Judge.
This matter came before the Court for a revocation hearing on April 8, 2015, as a result of a Supervised Release Violation Report dated March 20, 2015. The report outlines three (3) violations of Defendant's Supervised Release. At the April 8th hearing, Tackett was present and represented by retained counsel, Wesley Kent Varney, and the United States by and through Assistant United States Attorney Gary Todd Bradbury. During the hearing, Tackett stipulated to the three (3) violations as outlined in the report, waived her right of allocution before a United States District Judge, and exercised her right of allocution before the undersigned.
Subsequent to the April 8th hearing, probation submitted an Addendum to the Court outlining an error in its guidelines calculations in the Supervised Release Violation Report. The guidelines were originally calculated as a Grade A Violation, with a Criminal History Category I, resulting in a guideline range of twenty-four (24) to thirty (30) months. However, the guidelines should have been calculated as a Grade B Violation, with a Criminal History Category of I, resulting in a guideline range of four (4) to ten (10) months.
In light of the Addendum, the Court conducted a second revocation hearing on April 14, 2015. At the April 14th hearing, Tackett was present and represented by Wesley Kent Varney, while Assistant United States Attorney Todd Bradbury appeared on behalf of the United States. Once again, Tackett stipulated to the violations, waived her right to allocution before the District Judge, and exercised her right of allocution before the undersigned. The United States asked that Tackett be given six months' imprisonment with no supervised release to follow. Defense counsel requested sixteen weekends of intermittent confinement with two years of supervised release to follow. The matter now stands submitted for a recommendation from the undersigned.
For the reasons that follow, the undersigned will recommend that Tackett be found guilty of the three (3) violations outlined in the report and that the Court impose a sentence of sixteen (16) weekends' incarceration with no credit for time served. Additionally, the undersigned will recommend that Tackett be required to continue her current term of supervised release.
FINDINGS OF FACT
At the hearing on April 8, 2015, Tackett admitted that she was arrested in Pike County, Kentucky and charged with Operating a Motor Vehicle Under the Influence, 1st Offense. Additionally, Tackett admitted to snorting Xanex (for which she had no prescription) prior to her arrest. At the April 14th hearing, Tackett reiterated her stipulation to this conduct. As a result of this activity, her stipulated conduct establishes, by a preponderance of the evidence, that she has violated the following conditions of supervised release:
(1) Standard condition: Defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician. Defendant admitted to the use of Xanax without a valid prescription. (Grade C Violation);
(2) Supervised release condition: Defendant shall not commit another federal, state or local crime. Defendant's state charges constituted a violation of this condition. (Grade C Violation);
(3) Supervised release condition: Defendant shall not commit another federal, state or local crime. Due to the Sixth Circuit's finding that use equals possession, United States v. Crace, 207 F.3d 823, 836 (6th Cir. 2000), and the fact that offender has a prior drug conviction, simple possession amounts to a Class E felony under federal law. See 21 U.S.C. § 844(a); 18 U.S.C. § 3559(5). (Grade B Violation).
In making a recommendation regarding the imposition of sentence, the undersigned has considered the following factors set forth in 18 U.S.C. § 3553(a):
(i) The History and Characteristics of the Defendant, and the nature and circumstances of the offense. Defendant is a thirty-five-year-old female who has a Bachelor of Science degree in Psychology from the University of Pikeville. The Defendant has a lengthy history of substance abuse. She also has issues with depression and anxiety that are currently being treated with prescription medicine.
In addition to her underlying conviction for conspiracy to distribute marijuana and oxycodone, Defendant has now committed drug-related violations of her supervision a total of six times. Prior to the instant matter, Defendant's most recent violation was the result of a positive urine screen for Oxycodone a little over one year ago. [R. 238]. As a ...