United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On June 25, 2015, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Report that Defendant Marco Finnell had violated conditions of his supervised release. Defendant was present in Court and represented by Christopher L. Jackson, and the Government was represented by Assistant United States Attorney Anthony J. Bracke. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV_2-06-cr-85-DLB-CJS-20150625-113211; the official record of this proceeding was certified by Linda S. Tierney, Deputy Clerk.
Upon call of this matter at the Final Revocation Hearing, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to plead guilty to violation numbers 2 and 3 as set forth in the June 16, 2015, Violation Report, and, in exchange, the Government agreed to withdraw violation numbers 1 and 4 and to recommend a sentence of 24 months of imprisonment with no term of supervised release to follow. For the reasons that follow, the parties' agreement is an appropriate disposition of this matter, and therefore it will be recommended that Defendant's supervised release be revoked and that he be sentenced to a 24-month term of imprisonment, with no term of supervised release to follow.
I. Procedural Background
On April 20, 2007, Defendant pleaded guilty to Possession with Intent to Distribute Crack Cocaine in violation of 21 U.S.C. § 841(a)(1). (R. 27). On August 7, 2007, the presiding District Judge sentenced Defendant to a 72-month term of imprisonment with 6 years of supervised release to follow. (R. 31, 36).
On January 25, 2012, Defendant was released from prison to begin his term of supervision. (R. 44). On February 14, 2012, Defendant reported to the probation office as instructed, and prior to collection of a urine specimen, he admitted to smoking marijuana four days previously. At that time, Defendant was staying with his girlfriend, whom the probation officer subsequently learned is a convicted felon, but Defendant failed to disclose this fact to the probation officer in further violation of his conditions of release. (Id. ). As a result of these violations, Defendant agreed to have his supervision modified to include 12 weekends in jail. (Id. ). The Court agreed to the modification. (Id. ).
On April 13, 2012, Defendant was before the Court on additional violations of his supervision as set forth in the Probation Officer's Petition for Warrant for Offender Under Supervision, which included claims that he violated the following conditions: 1) Defendant shall report as instructed; 2) Defendant shall notify his probation officer at least 10 days prior to any change in employment, 3) Defendant shall participate in substance abuse treatment at the direction of the probation officer; 4) Defendant shall report to the probation office and submit a truthful written report; and 5) Defendant shall not use any controlled substance, except as prescribed by a physician. (R. 45). On April 16, 2012, United States Magistrate Judge Wehrman found Defendant violated the terms of his supervised release and recommended that Defendant's supervision be revoked and that he be sentenced to a 12-month term of imprisonment with 4 years of supervision to follow. (R. 51) On May 4, 2012, the presiding District Judge adopted the Report and Recommendation and so sentenced Defendant. (R. 53, 54).
On April 10, 2013, Defendant was released from prison to begin his term of supervision. (R. 55). On February 24, 2014, Defendant was again before the Court on additional violations of his supervision as set forth in the Probation Officer's Petition for Warrant for Offender Under Supervision, which included claims that he violated his conditions of supervision by committing two state or local crimes and possessing paraphernalia related to controlled substances, to wit a set of scales. (R. 55). The parties reached an agreement whereby Defendant agreed to plead guilty to violation number 1 as set forth in the Violation Report, and the Government agreed to dismiss the remaining violations and recommend an 18-month sentence. On March 6, 2014, the undersigned found Defendant violated the terms of his supervised release and recommended that Defendant's supervision be revoked and that he be sentenced to an 18-month term of imprisonment with 4 years of supervision to follow. (R. 62). On March 7, 2014, the presiding District Judge adopted the Report and Recommendation and sentenced Defendant consistently with the undersigned's recommendations. (R. 64, 65).
On December 9, 2014, Defendant was again released from prison to begin his term of supervision. (R. 66). On June 16, 2015, United States Probation Officer Stacey Suter, on behalf of Probation Officer Mark. R. Grawe, submitted a Petition for Warrant for Offender Under Supervision, notifying the presiding District Judge that Defendant had not complied with conditions of his supervision. (Id. ). The Probation Officer requested a warrant issue for Defendant's arrest, and a warrant was subsequently issued. (R. 66, 68).
Defendant now stands before this Court charged with four violations of his supervised release conditions relating to his use of marijuana, associating with a felon, and having a prescription in an improper container. These charged violations were presented to the Court via the Probation Officer's June 16, 2015, Violation Report. As discussed above, during the Final Revocation Hearing, counsel informed the Court that the parties had reached an agreement: Defendant was prepared to plead guilty to violation numbers 2 and 3 as set forth in the Violation Report, and the Government agreed to withdraw violation numbers 1 and 4. The parties also agreed on a recommended sentence of 24 months with no supervision to follow.
The undersigned explained to Defendant the statutory maximum terms of incarceration and supervised release as well as the applicable guideline range. The undersigned further explained that while a recommendation of an appropriate sentence will be made to the presiding District Judge, it is ultimately the decision of the presiding District Judge as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to plead guilty to violation numbers 2 and 3 as set forth in the June 16, 2015, Violation Report of the United States Probation Officer. Specifically, Defendant admitted to the following violations of supervised release and the factual circumstances set forth below:
Violation #2: The Defendant shall not commit another federal, state, or local crime (Grade B Violation).
Defendant admitted to his Probation Officer that he used marijuana on or about May 24, 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), given Defendant's history.
Violation #3: The Defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do ...