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United States v. Jackson

United States District Court, E.D. Kentucky, Northern Division

December 4, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
LOE ROY JACKSON DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         On August 22, 2017, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Report that Defendant Loe Roy Jackson had violated conditions of his supervised release. Defendant was present in Court and represented by court-appointed counsel Kerry Neff, and the Government was represented by Assistant United States Attorney Anthony Bracke. Senior U.S. Probation Officer Stacey Suter was also present for this proceeding.

         Upon call of this matter at the Final Revocation Hearing on Supervised Release Violations, counsel informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to admit to the violations alleged in the April 5, 2017 Violation Report (R. 52), and waive his right to allocute before District Judge Bunning and his right to appeal the sentence imposed by Judge Bunning to the extent it is consistent with this Report and Recommendation. In exchange, the Government agreed to recommend a term of incarceration of 30 months with a new term of supervision of 12 months to follow.

         Upon consideration, the parties' agreement is an appropriate proposed disposition of this matter. Therefore, it will be recommended that Defendant's supervised release be revoked and that he be sentenced to a 30-month term of imprisonment with 12 months of supervised release to follow.

         I. Procedural Background

         On December 15, 2008, Defendant appeared in U.S. District Court in Covington, Kentucky, before the Honorable David L. Bunning, U.S. District Judge, and pled guilty to manufacturing and distribution of marijuana, possession of a firearm in furtherance of drug trafficking, and possession of a firearm by an unlawful drug user. (R. 28). On April 7, 2009, Judgment was entered (R. 41), Judge Bunning having sentenced Mr. Jackson to a total term of imprisonment of 78 months with a 4-year term of supervised release to follow.

         On January 17, 2014, Defendant Jackson was released from prison to begin his 4-year term of supervision by U.S. Probation. (See R. 52). Defendant's conditions of supervision were subsequently modified on January 3, 2017, to include conditions pertaining to prescription medications. (See R. 43).

         On April 4, 2017, Officer Suter petitioned for Defendant to appear before the Court regarding alleged violations of his supervision. (R. 44). Defendant subsequently initially appeared on April 6, 2017. (R. 50). The charged violations were presented to the Court via the Probation Officer's April 5, 2017, Violation Report. (R. 52). The violation charges were reviewed with Mr. Jackson, the potential penalties were explained, and a final revocation hearing was scheduled. (R. 50). However, upon call of the case at that scheduled final hearing, Defendant moved to have his competency evaluated; the Government did not oppose the request. (See R. 54). Mr. Jackson subsequently underwent a court-ordered competency evaluation at FMC Lexington. Following the examiner's issuance of her competency report (R. 64), the case was scheduled for a combined competency hearing and final revocation hearing. Upon call of the case for this combined proceeding, the Court found Defendant competent to proceed[1] and moved forward with the final revocation hearing. (See R. 63). As noted above, counsel at that time informed the Court that the parties had reached an agreement: Mr. Jackson was prepared to admit to the violations, and the parties agreed on a recommended sentence of 30 months of incarceration with a new term of 12 months of supervised release to follow.

         At the final hearing, the undersigned reviewed with Defendant the statutory maximum terms of incarceration and supervised release as well as the applicable Sentencing Guidelines range. The undersigned further explained that while a recommendation of an appropriate sanction will be made to the presiding District Judge, it is ultimately Judge Bunning's decision as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to admit to the alleged violations set forth in the April 5, 2017 Violation Report. Specifically, Mr. Jackson admitted under oath to the following violations of supervised release and the factual circumstances set forth below:

         Violation No. 1:

         The 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. (Grade C violation)

         On March 31, 2017, a search was conducted of Defendant's apartment, at which time items suggestive of trafficking in marijuana were found. A subsequent search of Defendant's phones revealed text messages consistent with selling controlled substances. During the search Defendant admitted to U.S. Probation that he possessed and was selling marijuana, which he confirmed during the final revocation hearing. Defendant admitted this conduct violates his supervision.

         Violation No. 2:

         Defendant must comply strictly with the orders of any physician or other prescribing source with respect to use of all ...


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