United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram United States Magistrate Judge
referral from District Judge Thapar (D.E. 184), the Court
considers reported violations of supervised release
conditions by Defendant James Wagers.
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.
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.
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.
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.
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).
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.
§ 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).
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,
Defendant's range, under the Revocation Table of Chapter
7, is 18 to 24 months.
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.
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 ...