United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On April 13, 2015, this matter came before the Court for a Final Revocation Hearing on the U.S. Probation Office's Report that Defendant Willie Stokes had violated conditions of his supervised release. Defendant was present in Court and represented by Kerry L. Neff, and the United States was represented by Assistant United States Attorney Elaine Leonhard. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV_2-08-cr-49-DLB-CJS-008-20150413-144420; the official recording of this proceeding was certified by Linda Tierney, Deputy Clerk.
On December 10, 2009, Defendant pleaded guilty to one count of conspiracy to distribute over 5 grams of cocaine base and one forfeiture count. (R. 228). On March 19, 2010, the presiding District Judge sentenced Defendant to a total term of imprisonment of 60 months with an 8-year term of supervised release to follow. (R. 259, 262). On December 19, 2013, Defendant was released to begin his 8-year term of supervised release. (R. 429).
On July 7, 2014, Defendant reported to the Probation Office for a drug test and his urine specimen tested positive for marijuana. Defendant admitted to the Probation Officer to using marijuana at a family function. The Probation Officer reported the violation to the presiding District Judge, who adopted the Probation Officer's recommendation of referring Defendant for counseling. (R. 408).
On December 3, 2014, Defendant reported to the Probation Office as required, and was informed that a urine specimen would be collected for drug testing. Defendant admitted to a new use, but prior to collection of the specimen, he passed out and was taken to the hospital. The Probation Office later obtained the results of a drug test performed at the hospital that revealed a positive result for marijuana. On December 23, 2014, Defendant's urine sample again tested positive for marijuana, but the Probation Office was unable to determine if the results of this test were from a new use. The Probation Officer notified the presiding District Judge of Defendant's two positive drug tests, recommending that Defendant continue in substance abuse counseling but asking that a condition be added for Defendant to receive mental health treatment. (R. 413). The Probation Officer explained she was recommending that a mental health treatment condition be added because Defendant's substance abuse therapist indicated Defendant was in need of mental health treatment to assist him with depression, anxiety, and grief. ( Id. ). The presiding District Judge then modified his conditions to include mental health treatment. ( Id. ).
Defendant now stands before the Court charged with the following violations:
Violation # 1: The Defendant 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. (Grade C violation).
On March 10, 2015, Defendant reported to the Probation Office and provided a urine specimen for drug testing, but the specimen appeared adulterated. Defendant ultimately admitted to the Probation Officer to using marijuana on March 7, 2015, stating that he used marijuana with individuals who gave him a ride home from work. Defendant signed an admission report. Defendant reported as instructed the following day to provide another urine specimen, which tested positive for marijuana.
Violation # 2: The Defendant shall not commit another federal, state or local crime and shall not illegally possess a controlled substance. (Grade B violation).
Defendant admitted to using marijuana on March 7, 2015. Under Sixth Circuit precedent, use is equivalent to possession and therefore under the circumstances considered a violation of federal law, 21 U.S.C. § 844(a).
At the final hearing on these charged violations, defense counsel informed the Court that Defendant was prepared to admit to the charges and proceed with a discussion of an appropriate sentence. Prior to taking his plea, the undersigned explained to Defendant the statutory maximum term of incarceration and supervised release as well as the sentencing options available to the Court. The undersigned also informed Defendant that the presiding District Judge imposing the final sentence was not obligated to impose the sentence recommended by the undersigned. Defendant acknowledged his understanding and stated he was prepared to admit to the violations. Accordingly, after being placed under oath, Defendant admitted and entered a guilty plea to the violations of his supervised release as set out in the March 17, 2015, Supervised Release Violation Report of the U.S. Probation Officer. Defendant did not waive his right to allocution.
The undersigned is satisfied from the dialogue with Defendant that he understands the nature of the pending charges, has had ample opportunity to consult with counsel, understands that no promises have been made to him about any final sentence to be imposed in exchange for his admissions regarding the charges, and that he enters his guilty plea knowingly and voluntarily. Therefore, based on Defendant's plea of guilty to the allegations, the undersigned finds and will recommend that the District Court ...