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United States v. Fredrick

United States District Court, E.D. Kentucky, Southern Division, London

April 20, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES EDWARD FREDRICK, Defendant.

RECOMMENDED DISPOSITION

HANLY A. INGRAM, Magistrate Judge.

On referral from District Judge Van Tatenhove (D.E. 62), the Court considers reported violations of supervised release conditions by Defendant James Edward Fredrick. This District entered a judgment against Defendant in June 2010[1] for failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). D.E. 28. Defendant's original punishment terms were thirtyseven months of imprisonment followed by a life term of supervised release. Id. at 2-3. Defendant began his supervised release term on March 28, 2012.

A little over seven months later, on November 7, 2012, the District Judge signed a Request for Modifying the Conditions or Term of Supervision With Consent of the Offender requiring Defendant to serve eight consecutive weekends in jail. D.E. 29. Officer Scott Greiwe of the United States Probation Office (USPO) requested this modification due to two instances (on October 16 and October 22, 2012) of Defendant's "unauthorized contact with minors and his failure to follow the instructions of the probation office (by being present with his girlfriend's children)[.]" Id. at 2.

On January 28, 2013, the USPO issued a Supervised Release Violation Report, and secured a warrant from the District Judge. The Supervised Release Violation Report charged Defendant with violating a Special Condition of Supervision that provides, "The defendant shall not consume any alcoholic beverages." D.E. 28 at 4. The Court conducted an initial appearance pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure on February 14, 2013, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 37.

At the final hearing on February 19, 2013, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 38. Defendant competently entered a knowing, voluntary, and intelligent stipulation to the single charged violation. The parties presented an agreement as to the sentence: revocation and a term of imprisonment of four months followed by re-imposition of a life term of supervision. The Court recommended this sentence to District Judge Van Tatenhove (D.E. 39), which Judge Van Tatenhove ultimately adopted (D.E. 42). Judge Van Tatenhove also modified seven conditions of Defendant's supervised release. D.E. 42 at 9-10. Defendant's new term of supervised release began on June 13, 2013.

On July 10, 2013, the USPO issued a Supervised Release Violation Report charging two violations, and on July 23, 2013, District Judge Van Tatenhove issued a warrant for Defendant's arrest. D.E. 45. Defendant was charged with violating Standard Condition Number 7 by using marijuana, and with violating the condition that he "not commit another federal, state, or local crime." On August 7, 2013, Judge H. Bruce Guyton sitting in the Eastern District of Tennessee conducted an initial appearance pursuant to Federal Rule of Criminal Procedure 40. D.E. 46 at 6. At that hearing, Defendant waived his right to any Rule 5 or 5.1 hearings (Id. at 3), and Defendant was committed back to the Eastern District of Kentucky. Id. at 6. On August 14, 2013, the Court conducted an initial appearance pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. See D.E. 48.

At the final hearing on August 28, 2013, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 53. Defendant competently entered a knowing, voluntary, and intelligent stipulation to the charged violations. Further, for the purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for the charged violations. The United States thus established both violations under the standard of section 3583(e). The parties presented an agreement as to the sentence, which did not bind the Court. The parties agreed to revocation, and recommended that the Court impose a term of imprisonment of eighteen months followed by re-imposition of a life term of supervision under the conditions imposed by Judge Van Tatenhove in his May 13, 2013 Order (D.E. 42). The Court recommended this sentence to District Judge Van Tatenhove (D.E. 55), which Judge Van Tatenhove ultimately adopted (D.E. 58). Defendant began his new term of supervised release on November 21, 2014.

On March 18, 2015, the USPO issued a Supervised Release Violation Report (the "Report"), and secured a warrant from Judge Van Tatenhove. The Report charged three violations. According to the Report, Officer Greiwe received information that Defendant may have created a page on Facebook. After searching the internet on March 9, 2015, Officer Greiwe discovered the Facebook page of a "James Edword." Officer Greiwe reported that he observed a post by "James Edword" which stated that he was engaged to an "Ella Douglas, " whom Office Greiwe knew to be Defendant's girlfriend. Further, Officer Greiwe discovered a post on "James Edword's" Facebook page which stated "Happy late birthday, " posted four days after Defendant's birthday. On March 12, 2015, Officer Greiwe contacted Defendant at his residence to discuss the possible violation, and Defendant admitted to using his aunt's computer to create an email address and a Facebook account without the permission of the USPO and in violation of Kentucky law. He further admitted to not registering the email address with the Kentucky Division of Probation and Parole, as required by the sex offender registry.

First, as a result of the above factual background, the Report charges Defendant with violating the condition that he not possess or use a computer or any device with access to any online computer service without prior written approval of the probation officer. According to the Report, Defendant did not request permission from the USPO to use his aunt's computer. This is a Grade C supervised release violation.

Second, the Report charges Defendant with violating the condition that he not commit another federal, state, or local crime. According to the Report, Defendant admitted to creating a Facebook page with the name of "James Edword" in violation of Kentucky Revised Statute § 17.546, a Class A Misdemeanor. This is a Grade C supervised release violation.

Third, the Report again charges Defendant with violating the condition that he not commit another federal, state, or local crime. According to the report, Defendant admitted to creating an email address in violation of Kentucky Revised Statute § 17.510(10)(c), a Class D Felony. This is a Grade B supervised release violation.

The Court conducted an initial appearance pursuant to Rule 32.1 on March 30, 2015, and set a final hearing before the undersigned following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 64. The United States moved for interim detention, and Defendant moved for release on the previously imposed conditions. Id. Based on the heavy defense burden under 18 U.S.C. § 3143(a), the Court remanded Defendant to the custody of the United States Marshal. Id.

At the final hearing on April 8, 2015, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583, including the right of allocution. D.E. 66. Defendant competently entered a knowing, voluntary, and intelligent stipulation to Violations One through Three. Id. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for those particular violations as described in the Report.

The Court has evaluated the entire record, including the most recent Supervised Release Violation Report and accompanying documents, the sentencing materials from the underlying Judgment in this District, and the documentation concerning Defendant's previous violations. Additionally, the Court has considered all of the section 3553 factors imported into the section 3583(e) analysis. Under section 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Defendant's conviction for failing to register as a sex offender constitutes a Class C felony. See 18 U.S.C. § 2250(a); 18 U.S.C. § 3559. For a Class C felony, the maximum revocation sentence provided under section 3583 is two years of imprisonment. See 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. See 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 section 7B1.1, Defendant's admitted conduct would qualify as a Grade B violation. Given Defendant's criminal history category of VI (the category at the time of the conviction in this District) and a Grade B violation, see U.S. Sentencing Guidelines Manual § 7B1.2(b) ("Where there is more than one violation of the conditions of supervision, or the violation includes conduct that constitutes more than ...


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