United States District Court, E.D. Kentucky, Central Division, Lexington
E. WIER UNITED STATES MAGISTRATE JUDGE
Court, on referral, see DE #498, considers reported
violations of supervised release conditions by Defendant,
Andre Lamont Holloway. This District originally convicted
Holloway of distributing crack in July 2013. DE #304
(Judgment). Judge Caldwell sentenced Holloway to a prison
term of 36 months, followed by a 6-year term of supervised
release. Id. Since release, Holloway unfortunately
has had extensive experience with the supervised release
revocation process. See DE ##431, 434, 442, 449,
458, 464, 465, 468, 487, and 493.
recently, the United States Probation Office (USPO) issued a
Supervised Release Violation Report on December 4, 2017, and
secured a warrant from Judge Caldwell the next day.
See DE #494 (Order). On December 8, 2017, Defendant
appeared before the undersigned for initial proceedings under
Federal Rule of Criminal Procedure 32.1. DE #497 (Minute
Entry Order). The Court, upon referral from the District
Judge, set and conducted a final hearing. See DE
#499 (Minute Entry Order).
Report alleges two violations: that (1) Holloway tested
positive for and thus used cocaine, and (2) because the Sixth
Circuit equates drug use to possession,  Holloway
possessed cocaine in violation of 21 U.S.C. § 844(a). At
the final hearing, Defendant (under oath) competently,
knowingly, voluntarily, and intelligently stipulated to the
two violations as described in the Report, and the Court
heard statements and arguments as to the proper sentence (as
well as Holloway's allocution).
Id. Holloway's stipulation, the Report,
and the underlying record (including the attached Alere drug
test) established the violative conduct under Rule 32.1 and
§ 3583. Accordingly, the Court finds that Holloway
violated the conditions of his supervised release as
described in the Report.
to the effect of the violations, the Court has evaluated the
full record, including the original conviction, all prior
revocation proceedings, the Presentence Investigation Report,
the current Violation Report, and the content of the final
hearing. The Court has considered all of the § 3553
factors imported into the § 3583(e)(3) analysis.
§ 3583, a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction. Holloway's conviction,
with his criminal history, is for a Class B Felony. 21 U.S.C.
§ 841(a)(1); id. § 841(b)(1)(C); 18 U.S.C.
§ 3559. For a Class B felony, the maximum revocation
sentence provided under § 3583 is three (3) years of
imprisonment. 18 U.S.C. § 3583(e)(3). The Policy
Statements in Chapter 7 of the 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.
United States v. Perez- Arellano, 212 F.
App'x 436, 438-39 (6th Cir. 2007) (“Although the
policy statements found in Chapter Seven of the United States
Sentencing Guidelines recommend ranges of imprisonment,
U.S.S.G. § 7B1.4, such statements ‘are merely
advisory' and need only be considered by the district
court before sentence is imposed.”) (citation omitted).
Under § 7B1.1(a), the second violation would qualify as
a Grade B violation (as a federal offense here punishable by
a term of imprisonment exceeding one year). With a criminal
history category of IV (the category at the time of the
conviction) and a Grade B violation, Defendant's range,
under the Revocation Table of Chapter 7, is 12-18 months.
also may reimpose supervised release, following revocation,
for a maximum period that usually subtracts any term of
incarceration actually imposed due to the current and any
prior violation. See 18 U.S.C. § 3583(b) &
(h). The post-revocation cap depends on the “term of
supervised release authorized by statute for the offense that
resulted in the original term of supervised release.”
18 U.S.C. § 3583(h). The general supervision-term limits
of § 3583(b) apply “[e]xcept as otherwise
provided.” Id. § 3583(b). In this
instance, the Court could potentially reimpose up to a
lifetime term of supervised release, the original maximum.
See 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. §
Court has carefully weighed the nature and circumstances of
the violations and Defendant's particular history and
characteristics. Holloway-with a serious drug abuse and
distribution history and recent record of drug-use-based
revocation-used cocaine again while on supervised
release, returning, yet another time, to felonious conduct.
The record and history strongly indicate a need for a
significant sentence as another effort to deter future
Holloway criminal conduct, to protect the public, and to
impress on Defendant the gravity and consequence of choices
on the course of his life.
Grade B violation, the Sentencing Guidelines mandate
revocation, see U.S.S.G. § 7B1.3(a)(1), and the
Court sees nothing in the record to support an opposite
conclusion. The current established (and, to
Defendant's credit, candidly admitted) violations
particularly reflect a need for a significant revocation
term. Thus, within days of his most recent release from
custody, Holloway, with his lengthy criminal and violative
history, returned to drug use- inherently dangerous conduct.
In truth, Holloway presents a situation lacking a good
solution; the Court perceives a spark in Mr. Holloway, but he
consistently squanders opportunities and makes poor
behavioral and associational choices that leave the Court
with few prospective options. The Court and the USPO have
tried mightily to help Mr. Holloway break his unfortunate
addiction, but all parties agreed that those efforts are,
after many attempts, exhausted. The Court is convinced that
Holloway will simply not stop using while he is not
incarcerated. As discussed at the final hearing, Holloway,
with two children, has much to live for; the Court earnestly
hopes he uses this prison stint to rededicate himself and
turn a corner toward living a productive, sober life, and one
not reliant on excuses.
for all the reasons stated, based on the violations found,
and after considering all applicable factors, the Court
RECOMMENDS that the District Court:
(1) REVOKE Holloway's supervised
(2) commit him to a term of incarceration of 15
(3) impose no additional supervision to
consideration of the entirety of Chapter 7, and applying the
binding statutory factors in § 3553, the Court finds the
recommended sentence to be sufficient but not greater than
necessary to effectuate and comply with the statute's
purposes. The Court carefully took the views of the United
States and defense into account in reaching this result. The
recommended imprisonment comports with (is at the middle of)
the Guideline range, reflecting the nature of the underlying
conduct and the clear need for public protection. Given the
extensiveness of Holloway's contact with the Court on
supervision, and the multiple prior opportunities the Court
and the USPO have afforded him, the Court simply sees no