United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram, United States Magistrate Judge
referral from District Judge Van Tatenhove (D.E. 25), the
Court considers reported violations of supervised release
conditions by Defendant Kevin Todd Rogers.
Van Tatenhove entered a judgment against Defendant in August
2012 upon a plea of guilty to possessing pseudoephedrine for
the purpose of manufacturing methamphetamine, in violation of
21 U.S.C. § 841(c)(2). D.E. 20. Defendant received a
sentence of 72 months of imprisonment followed by a
three-year term of supervised release. Id. at 2-3.
In August 2015, Judge Van Tatenhove granted Defendant's
motion for a sentence reduction and reduced the term of
incarceration to 52 months. D.E. 23. Defendant began his
supervised release term on March 25, 2016.
August 2017, the Probation Office reported that a urine test
administered on July 17 had yielded a positive instant result
for methamphetamine. D.E. 24. Defendant initially denied use
of a controlled substance, but later confessed. Id.
The Probation Office recommended that no action be taken at
that time, and the Court accepted the recommendation.
September 22, 2017, the United States Probation Office
(“USPO”) issued the Supervised Release Violation
Report (“the Report”) that initiated these
proceedings. The Report charges two violations.
the Report charges a violation of Standard Condition #7,
which forbids the purchase, possession, or use of any
controlled substance, except as prescribed by a physician.
to the Report,
On September 1, 2017, the defendant reported to the probation
office at approximately 9:00am in order to provide a urine
sample for drug screening. From the time of the
defendant's arrival until approximately 1:30pm, the
defendant was unable to provide a urine sample; however,
maintained he would be clean. As a result, a Pharmchek Sweat
Patch was applied. The defendant was instructed not to tamper
with, or compromise, the sweat patch while wearing the
device. On September 8, 2017, the defendant reported back to
the probation office at which time the sweat patch was
removed, packaged, and sent to Clinical Reference Laboratory
for analysis. On September 14, 2017, results were received
from Clinical Reference Laboratory indicating a positive
result for Methamphetamine.
a Grade C violation.
on Defendant's use of methamphetamine, Violation #2
charges a violation of the condition that Defendant 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 previous
drug conviction, Violation #2 charges Defendant with conduct
that would be a federal crime, that is, simple 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,
and is a Grade B supervised release violation.
Court conducted an initial appearance pursuant to Rule 32.1
on October 25, 2017, and set a final hearing following a
knowing, voluntary, and intelligent waiver of the right to a
preliminary hearing. D.E. 29. At the initial appearance, the
United States moved for interim detention; Defendant argued
for release. Id. Based on the heavy § 3143(a)
defense burden, the Court found that Defendant failed to
justify release and remanded Defendant to the custody of the
United States Marshal. Id. The parties met for a
final hearing on November 2, 2017, but the hearing was
continued so the defense could have more time to prepare.
final hearing on November 9, 2017, Defendant was afforded all
rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E.
32. Defendant competently entered a knowing, voluntary, and
intelligent stipulation to both violations. Id. For
purposes of Rule 32.1 proceedings, Defendant admitted the
factual basis for each violation described in the Report.
Id. 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). The United States thus established
Violation #2, the Grade B violation, under the standard of
Court has evaluated the entire record, including the Report
and accompanying documents, and the sentencing materials from
the underlying judgment in this District. Additionally, the
Court has considered all of ...