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United States v. Sullivan

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

December 4, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
JEFFREY SULLIVAN DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         On September 7, 2017, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Reports that Defendant Jeffrey Sullivan had violated conditions of his supervised release. Defendant was present in Court and represented by court-appointed counsel Steven Howe, and the Government was represented by Assistant United States Attorney Anthony Bracke. U.S. Probation Officer Specialist Shawn P. Donoho 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 August 30, 2017 Supervised Release Violation Report (R. 483) and August 31, 2017 Addendum to Supervised Release Violation Report (R. 494), and waive his right to allocute before District Judge Bunning and his right to appeal any sentence imposed by Judge Bunning. In exchange, the Government agreed to recommend a term of incarceration of 20 months with no new term of supervision 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 20-month term of imprisonment with no supervised release to follow.

         I. Procedural Background

         Defendant pleaded guilty in this matter to one count of conspiracy to distribute cocaine base and one forfeiture count. (R. 130). On March 3, 2011, District Judge Bunning sentenced Defendant to a total term of imprisonment of 84 months with an 8-year term of supervised release to follow. (R. 347; R. 349). On December 24, 2014, Defendant was released to begin his 8-year term of supervision. (R. 458).

         On January 16, 2015, Defendant was stopped by police officers while operating his motor vehicle and cited for improper lane change, child restraint violation and possession of less than 2 ounces of marijuana. (R. 414). Defendant timely reported the incident to his Probation Officer, Shawn P. Donoho, who reported the violation to District Judge Bunning and recommended no action at that time as the charges were pending, but noting he would report back with further recommendations. (Id.). Judge Bunning adopted Officer Donoho's recommendation. (Id.). Probation Officer Donoho later reported to Judge Bunning that the charges had been dismissed and that Defendant told him that his sister, a passenger in the vehicle, claimed ownership of the marijuana. (R. 416). Officer Donoho recommended no further action, and Judge Bunning concurred. (Id.).

         On October 7, 2015, Probation Officer Donoho reported to District Judge Bunning that Defendant had submitted urine specimens on August 12, 2015, August 28, 2015, September 1, 2015, September 8, 2015, and September 14, 2015, that all tested positive for marijuana. (R. 449).

         Defendant initially claimed to have smoked marijuana once, on or about August 11, 2015, but an interpretation report from Alere Toxicology indicated that Defendant is believed to have reused marijuana prior to the collection on August 28, 2015. Officer Donoho reported to Judge Bunning that Defendant was attending weekly group treatment at IKRON Inc., submitting to weekly random urine screens and was working towards getting his license as a barber. (Id.). Officer Donoho recommended Defendant remain on supervised release pursuant to the exception to revocation clause, which Judge Bunning agreed to adopt, finding Defendant could benefit from continued substance abuse treatment. (Id.).[1]

         On March 10, 2016, Defendant appeared in Court on charges he violated his supervision (R. 457), as set forth in Officer Donoho's March 4, 2016, Supervised Release Violation Report (R. 458). That report indicated that Defendant's recent supervision circumstances had led Officer Donoho to believe Defendant had violated conditions requiring that he not associate with convicted felons or persons engaged in criminal activity absent permission from Probation, that he notify Probation within 72 hours of being arrested or questioned by law enforcement, and that he refrain from possessing or using controlled substances unless prescribed to him by a physician. (Id.). Specifically, Defendant was stopped by Cincinnati Police on February 7, 2016, and the Probation Office learned that one of the individuals in Defendant's vehicle was an individual who had been convicted of a felony. Defendant had also failed to timely report this encounter with the Cincinnati Police to the Probation Office. Finally, a urinalysis performed on Defendant's February 16, 2016, specimen was reported as dilute and positive for marijuana.

         Defendant appeared before the Court on March 25, 2016, at which time a contested final revocation hearing was conducted as to these charges (R. 463). The Court thereafter held a status conference on May 5, 2016, to clarify and update the record since the March 25, 2016 final hearing. (R. 469). On May 23, 2016, the undersigned found that Defendant had violated the terms of his supervised release as reported in Violations 1, 2 and 3 of the March 4, 2016 Supervised Release Violation Report. (R. 474). But rather than revoke Defendant's supervision, the undersigned recommended that his supervision be modified to require that he serve 14 weekends of intermittent confinement and be required to attend a substance abuse treatment program regardless of whether Defendant thinks it is necessary. (Id.). On June 8, 2016, Judge Bunning adopted the Report and Recommendation and modified Defendant's terms and conditions of supervision accordingly. (R. 476).

         On June 30, 2017 Defendant was involved in an auto accident on I-75 in Cincinnati and responding officers cited him for failing to maintain an assured clear distance. In addition, upon detecting a smell of marijuana at the scene, subsequent search of Defendant's vehicle revealed a small bag of marijuana, prompting a further citation for possession of drugs. (R. 477). Defendant reported the incident to Officer Donoho, who reported the violation to Judge Bunning and recommended no action at that time as the charges were pending. (Id.). Judge Bunning adopted Officer Donoho's recommendation. (Id.). Probation Officer Donoho later reported to Judge Bunning that the drug possession charge had been dismissed and the assured clear distance conviction resulted in a fine and court costs. (R. 478). Officer Donoho recommended no further action and Judge Bunning concurred. (Id.).

         On August 25, 2017, Officer Donoho petitioned for Defendant to appear before the Court regarding further alleged violations of his supervision. (R. 479). Defendant subsequently initially appeared on August 30, 2017. (R. 482). The charged violations were presented to the Court via the Probation Officer's August 30, 2017 Supervised Release Violation Report. (R. 483). The violation charges were reviewed with Mr. Sullivan, the potential penalties were explained, and a final revocation hearing was scheduled. (R. 482). It was further explained to Mr. Sullivan that, in light of his admission to marijuana use, consistent with the practices of this Court his violation charges would be updated to provide for a new law violation for being in possession of marijuana. The case was called for final revocation hearing on September 7, 2017, at which time Officer Donoho's August 31 Addendum formally adding that new law violation was reviewed with Defendant. (R. 492). Thereafter, as noted above, counsel informed the Court that the parties had reached an agreement: Mr. Sullivan was prepared to admit to the violations, with the exception of the charge he unlawfully used oxycodone, and the parties agreed on a recommended sentence of 20 months of incarceration with no new term of supervision 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 August 30 and 31, 2017 Violation Reports, with the exception of unlawful ...


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