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United States v. Damron

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

September 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY DAMRON, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram, United States Magistrate Judge

         On 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.

         I.

         On 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.

         II.

         On 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.

         At the 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).

         The parties agreed to a sentence of 30 days to be served intermittently on weekends and a total supervised release term of four years.

         III.

         The 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.

         Under 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.

         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) (“[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).

         The 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 Range.

         Counsel 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. ...


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