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United States v. Wagers

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

March 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES WAGERS, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram United States Magistrate Judge

         On referral from District Judge Thapar (D.E. 184), the Court considers reported violations of supervised release conditions by Defendant James Wagers.

         Judge Thapar entered a judgment against Defendant in May 2010 following a guilty plea to violating 21 U.S.C. §§ 841(a)(1) & 846, participating in a conspiracy to distribute oxycodone. D.E. 120. His sentence was enhanced under 21 U.S.C. § 851 on account of a prior felony drug trafficking conviction. Id. Defendant received a prison sentence of 100 months, followed by a six-year term of supervised release. Id. His prison term was later reduced to 87 months. D.E. 162. He began his first term of supervised release on October 30, 2015.

         On January 30, 2017, the United States Probation Office (“USPO”) submitted a “Supervised Release Violation Report” (“the Report”) that initiated these proceedings. The Report charges two violations. The first is an alleged violation of the condition requiring that 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.” According to the Report, on January 13, 2017, Defendant submitted a urine specimen that tested positive for methamphetamine. This is a Grade C Violation.

         Second, in relation to this unauthorized use of a controlled substance, the Report charges Defendant with violating the condition that he not commit another federal, state, or local crime. Noting the Sixth Circuit's decision that use of a controlled substance includes possession and Defendant's prior drug conviction, Violation #2 charges Defendant with conduct that would be a federal crime, that is, possession of methamphetamine, a Schedule II controlled substance. Such conduct would be a Class E felony pursuant to 21 U.S.C. § 844(a), Simple Possession of a Controlled Substance. This is a Grade B violation.

         The Court conducted an initial appearance and preliminary hearing pursuant to Rule 32.1 on February 9, 2017. D.E. 178. After the presentation of evidence, Defendant conceded probable cause regarding both alleged violations. Id. The United States moved for interim detention; Defendant argued for release. Id. Based on the heavy defense burden under 18 U.S.C. § 3143(a), the undersigned remanded Defendant to the custody of the United States Marshal. Id.

         At the final hearing on March 1, 2017, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 186. Defendant competently entered a knowing, voluntary, and intelligent stipulation to Violation #1. Id. Of course, his admission to the first violation provides a factual basis for the Court to find that he committed Violation #2. By admitting that he used methamphetamine some time before January 13, he admitted drug possession, which for him is a federal felony. In the Supervised Release context, the Sixth Circuit treats controlled substance use as equivalent to possession. See United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000). Therefore, for purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for both violations as described in the Report. The United States thus established Violations # 1 and #2 under the standard of § 3583(e).

         I.

         The Court has evaluated the entire record, including the Report and accompanying documents, and the sentencing materials from the underlying Judgment. Additionally, the Court has considered all of the § 3553 factors imported into the § 3583(e) analysis.

         Under § 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Defendant pleaded guilty to participating in a conspiracy to distribute oxycodone. Because of his prior state drug trafficking offense, this charge amounted to a Class B felony. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846; 18 U.S.C. § 3559(a)(3). For a Class B felony, the maximum revocation sentence provided under § 3583 is three years of imprisonment. 18 U.S.C. § 3583(e)(3).

         The Policy Statements in Chapter 7 of the Sentencing 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. App'x 436, 438-39 (6th Cir. 2007). Under § 7B1.1, Defendant's admitted conduct would qualify as a Grade C violation with respect to Violation # 1 and a Grade B violation with respect to Violation # 2. Given Defendant's criminal history category of V (the category at the time of the conviction) and a Grade B violation, [1] Defendant's range, under the Revocation Table of Chapter 7, is 18 to 24 months.

         A court may also re-impose supervised release, following revocation, for a maximum period that usually subtracts any term of incarceration actually imposed due to the violation. See 18 U.S.C. § 3583(b), (h). The post-revocation cap depends on the “term of supervised release authorized by statute for the offense that resulted in the original term of supervised release.” See 18 U.S.C. § 3583(h). Given the nature of Defendant's conviction, pursuant to 21 U.S.C. § 841(b)(1)(C), there is no maximum term of supervised release that can be re-imposed.

         II.

         At the final hearing, the government argued for revocation with twenty months of imprisonment, followed by five years of supervised release. First, the government stressed the seriousness of the underlying conviction, which involved large quantities of oxycodone tablets. According to the government, Defendant was “an average player in a serious offense.” Regarding Defendant's history and characteristics, the government pointed out he had two prior DUIs, convictions for possession of marijuana and oxycodone, and a state conviction for trafficking hydrocodone (which involved three controlled purchases). Defendant's history of drug abuse thus birthed conduct that endangered the community. The government further argued that, by turning to methamphetamine, Defendant had “escalated” his drug use to a new and more dangerous type of narcotic. The government also noted that ...


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