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United States v. Rogers

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

November 13, 2017



          Hanly A. Ingram, United States Magistrate Judge

         On referral from District Judge Van Tatenhove (D.E. 25), the Court considers reported violations of supervised release conditions by Defendant Kevin Todd Rogers.

         Judge 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.

         In 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. Id.

         On 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.

         First, 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.

         According 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.

         This is a Grade C violation.

         Based 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.


         The 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. D.E. 31.

         At the 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 § 3583(e).

         The 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 ...

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