United States District Court, E.D. Kentucky, Northern Division at Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On June 10, 2015, this matter came before the Court for a Final Revocation Hearing on the U.S. Probation Office's Report and Supplemental Report that Defendant James Cody Carter had violated conditions of his supervised release. Defendant was present in Court and represented by Kerry L. Neff, 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_2-15-cr-11-DLB-CJS-20150610-133235; the official record of this proceeding was certified by Linda Tierney, Deputy Clerk.
On April 3, 2002, a federal grand jury returned a 5-count Indictment against Defendant in the United States District Court in the Southern District of Ohio. (R. 2-1). On August 14, 2002, Defendant appeared in U.S. District Court in Cincinnati, Ohio, before the Honorable Judge Herman J. Weber, U.S. District Judge, and pleaded guilty to Count 1, distribution in excess of 5 grams of cocaine base. (R. 2, at 4). On January 17, 2003, the Court sentenced Defendant to 151 months of imprisonment with a 4-year term of supervised release to follow; the remaining counts were dismissed. (R. 2-2). Defendant's period of supervision began on October 21, 2011. The U.S. Probation Office in Covington, Kentucky accepted supervision of Defendant on January 30, 2015. On March 18, 2015, the Court accepted jurisdiction over Defendant and jurisdiction over this matter was transferred to this Court. (R. 1).
On May 21, 2015, Defendant was charged with the following violations of supervised release. (R. 8). Each violation is based upon the factual circumstances set forth below:
Violation No. 1: The Defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons (Grade C violation).
Since February 2015, Defendant has repeatedly informed Senior U.S. Probation Officer Suter that he was employed by Southern Comfort Construction LLC, and that he was paid by check. Upon investigation, Probation Officer Suter learned that Defendant had not cashed the checks that he had previously submitted as proof of employment. Defendant subsequently provided Probation Officer Suter with copies of three new checks as verification of his employment. Further investigation revealed that these checks were never cashed. In addition, Defendant informed the Probation Officer that he has not filed his tax returns since the onset of his supervision.
Violation No. 2: The Defendant shall support his dependants and meet other family responsibilities (Grade C violation).
On April 27, 2015, Probation Officer Suter contacted the Hamilton County, Ohio, Child Support Office and learned that Defendant was not current on his child support obligations for five children.
Violation No. 3: The Defendant shall not associate with any person engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the Probation officer. (Grade C violation).
The Probation Office determined that Defendant is living with his girlfriend who is a convicted felon. Defendant had failed to advise the Probation Office of his girlfriend's status as a felon. In addition, the Probation Office reported it was concerned with facts leading to the belief that Defendant's girlfriend, and possibly Defendant, may have had unauthorized use of a rental vehicle.
Violation No. 4: The Defendant shall submit truthful and complete written reports within the first five days of each month (Grade C violation).
Defendant presented monthly reports to the U.S. Probation Office in either Covington, Kentucky or Cincinnati, Ohio falsely representing that: 1) he was employed by Southern Comfort Construction LLC, but he has never presented the checks written to him by the alleged employer to a bank for payment; and 2) he has not had contact with anyone having a criminal record, but it has been determined that he lives with his girlfriend who is a convicted felon.
On May 22, 2015, a warrant was issued for Defendant's arrest based on the Petition presented by his Probation Officer for the aforementioned supervised release violations. (R. 3). On May 26, 2015, Defendant was arrested and brought before the undersigned for ...