United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram, United States Magistrate Judge
referral from District Judge Van Tatenhove (D.E. 352 at 2),
the Court considers reported violations of supervised release
conditions by Defendant Anthony Damron. Judge Van Tatenhove
entered an initial judgment against Defendant on October 15,
2013, on one count of conspiracy to distribute a quantity of
pills containing oxycodone. D.E. 235 at 1. Defendant was
sentenced to fifty-seven months of imprisonment followed by
five years of supervised release. Id. at 2-3. On
August 19, 2015, Judge Van Tatenhove granted Defendant's
motion for sentence reduction pursuant to 18 U.S.C. §
3582(c)(2), and reduced his sentence from fifty-seven months
to forty-six months. D.E. 324. Defendant began his supervised
release on April 13, 2016.
August 14, 2017, the United States Probation Office
(“USPO”) issued the Supervised Release Violation
Report (“the Report”) that initiated this
revocation. The Report charges, as Violation #1, a violation
of Special Condition #7 requiring that Defendant “shall
not unlawfully possess . . . a controlled substance.”
D.E. 235 at 3. This is a grade C violation. The Report also
charges, as Violation #2, that Defendant committed another
federal, state, or local crime by possessing methamphetamine,
which is a violation of 18 U.S.C. § 844(a) and a class E
felony. This is a grade B violation. The Report specifically
alleges that, on July 27, 2017, the USPO conducted a routine
home contact and collected a urine sample. This sample was
positive via laboratory testing for methamphetamine.
August 31, 2017, Defendant appeared before the Court on a
summons for an initial appearance pursuant to Rule 32.1 of
the Federal Rules of Criminal Procedure. D.E. 356. The Court
set a final hearing following a knowing, voluntary, and
intelligent waiver of the right to a preliminary hearing.
Id. The Court recessed during the initial appearance
for the USPO to administer a urine screen to Defendant, which
was negative. The United States made an oral motion for
interim detention and Defendant argued for release.
Id. The Court found that Defendant met his burden
under 18 U.S.C. § 3143(a) to justify release and
admonished him to abide by all of his original supervised
release conditions while on release. Id. The USPO
collected a sample for laboratory testing on September 1,
2017, and administered an instant test on September 5, 2017.
The Court had not received the results from the urine
collected on September 1, 2017, by the time of the final
hearing. Following the hearing, the USPO reported to the
undersigned that the September 1 sample tested negative. The
instant urine screen on September 5, 2017, was negative for
any controlled substances.
final hearing on September 6, 2017, Defendant was afforded
all rights due under Rule 32.1 and 18 U.S.C. § 3583.
D.E. 358. Defendant competently entered a knowing, voluntary,
and intelligent stipulation to Violations #1 and #2.
Id. For purposes of Rule 32.1 proceedings, Defendant
admitted the factual basis for the violations as described in
the Report. 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). Given Defendant's criminal
history that includes a previous drug conviction, Violation
#2 constitutes felony conduct in violation of 21 U.S.C.
§ 844. The United States thus established both
violations under the standard of § 3583(e).
parties agreed to a sentence of 30 days to be served
intermittently on weekends and a total supervised release
term of four years.
Court has evaluated the entire record, the Report and
accompanying documents, and the sentencing materials from the
underlying Judgment in this District. Additionally, the Court
has considered all of the section 3553 factors imported into
the section 3583(e) analysis.
section 3583(e)(3), a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction. Defendant was convicted of
the Class C felony of conspiracy to distribute a quantity of
pills containing oxycodone. See 21 U.S.C.
§§ 846; 841(b)(1)(C); 18 U.S.C. § 3559(a)(3).
Defendant's conviction carries a twenty-four-month
maximum period of incarceration upon revocation pursuant to
18 U.S.C. § 3583(e)(3). Under 18 U.S.C. § 3583(h)
and 21 U.S.C. § 841(b)(1)(C), there is no maximum term
of supervised release that may be re-imposed.
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) (“[T]he policy
statements found in Chapter Seven of the United States
Sentencing Guidelines . . . ‘are merely advisory'
and need only be considered by the district court before
sentence is imposed.”) (citation omitted). Under
section 7B1.1, Defendant's admitted conduct would qualify
as a Grade B violation. Given Defendant's criminal
history category of III (the category at the time of the
conviction in this District) and a Grade B violation,
Defendant's Range under the Revocation Table of Chapter 7
is eight to fourteen months. U.S.S.G. § 7B1.4(a).
United States argued for a thirty-day term of imprisonment to
be served intermittently on weekends, with Defendant's
supervised release conditions to apply while he is not in
custody, and a total supervised release term of four years.
The government also argued for increased, random drug testing
at the discretion of the UPSO. The government noted that
revocation was mandatory because Defendant possessed a
controlled substance and argued for four additional years of
supervised release to protect the public from dangerous drug
trafficking. Regarding the nature and circumstances of the
offense and the history and characteristics of Defendant, the
government expressed concern about Defendant's violent
criminal past and the history of drug use. However, the
government noted that Defendant's drug use history did
not indicate an addiction to methamphetamine and
Defendant's underlying conviction did not involve
methamphetamine. The government also noted that Defendant
willingly appeared before the Court for the initial
appearance and the final supervised release violation
hearing. The government stated that, while it recommends a
lenient sentence for these violations, if Defendant appeared
before the court again due to drug use, it would recommend
revocation at the high end of, or above, the Guidelines
for Defendant agreed with the government and noted that,
until these violations, Defendant had successfully abided by
the conditions of his supervised release, remained
cooperative with his probation officer, had a supportive
relationship with his wife, and continued to maintain
full-time employment. ...