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United States v. McQueen

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

January 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN H. MCQUEEN, Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE

         On referral from District Judge Van Tatenhove (D.E. 647 at 2), the Court considers reported violations of supervised release conditions by Defendant Bryan McQueen. Judge Van Tatenhove entered a Judgment against Defendant on September 20, 2012, for one count of conspiracy to distribute a quantity of pills containing oxycodone. D.E. 429 at 1. Defendant was sentenced to fifty-one months of imprisonment followed by three years of supervised release. Id. at 2-3. Defendant's sentence was later reduced to forty-two months pursuant to 18 U.S.C. § 3582(c)(2), which allows for a reduction in the term of imprisonment originally imposed. D.E. 550. Defendant began his initial supervised release term on October 30, 2015.

         The United States Probation Office (“USPO”) submitted a Report on Offender Under Supervision on February 24, 2016, and requested that no action be taken after Defendant admitted to using methamphetamine. D.E. 570. The Court approved the USPO's request. Id. On September 6, 2016, the USPO submitted a Supervised Release Violation Report after Defendant used methamphetamine again. D.E. 589. Defendant stipulated to violating the terms of his supervised release by using a controlled substance and committing a federal, state, or local crime. Id. at 3. Judge Van Tatenhove revoked his supervised release and sentenced him to twelve months of imprisonment followed by three years of supervised release. D.E. 593 at 2-3. Defendant began his current term of supervised release on September 13, 2017. The USPO submitted a Report on Offender Under Supervision on October 23, 2017, again requesting that no action be taken, after Defendant failed to truthfully answer inquiries and follow instructions of the probation officer. D.E. 645. The Court approved this request on October 27, 2017. Id.

         On November 9, 2017, the USPO issued another Supervised Release Violation Report (“the Report”), and secured an arrest warrant on November 14, 2017. D.E. 648. Defendant was arrested on January 1, 2018. D.E. 651. The Report alleges that Defendant submitted a urine sample to the probation office on October 31, 2017, which ultimately tested positive for methamphetamine. The Report charges Defendant with two violations stemming from this positive urine sample. Violation #1 charges that Defendant violated Special Condition #7, which requires him to refrain from purchasing, possessing, using distributing, or administering any controlled substance or paraphernalia related to any controlled substance, except as prescribed by a physician. This is a Grade C Violation. Violation #2 charges that defendant violated the prohibition against committing a federal, state, or local crime based on his criminal history and the possession of methamphetamine, which is a violation of 21 U.S.C. 844(a), and a Class E Felony. This is a Grade B Violation.

         I.

         On January 2, 2018, the Court conducted an initial appearance pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 652. At the initial appearance, the United States made an oral motion for interim detention; Defendant did not argue for release. Id. Based on the heavy § 3143(a) defense burden, the Court remanded Defendant to the custody of the United States Marshal. Id.

         At the final hearing on January 10, 2018, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 653. Defendant competently entered a knowing, voluntary, and intelligent stipulation to Violations #1 and #2. Id. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for the violations as described in the Report. The United States thus established both violations under the standard of section 3583(e). Id.

         The parties did not agree as to the sentence. The government argued for revocation with eighteen months of incarceration. Defense counsel argued for eight months of imprisonment followed by one year of an inpatient drug treatment program and a few months of supervised release, or, alternatively, eight months of imprisonment followed by ninety days of inpatient drug treatment and a longer term of supervised release. Defense Counsel also recommended that the Court conduct a status conference at the conclusion of Defendant's treatment to evaluate his progress and, if he completes ninety days of inpatient treatment, to determine if a year-long program is available.

         II.

         The Court has evaluated the entire record, the Report and accompanying documents, and the sentencing materials from the underlying Judgment in this District. Additionally, the Court has considered all of the section 3553 factors imported into the section 3583(e) analysis.

         Under section 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Defendant was convicted of the Class C felony of conspiracy to distribute a quantity of pills containing oxycodone. See 18 U.S.C. §§ 846; 841(b)(1)(C); 3559(a)(3). Defendant's conviction carries a twenty-four-month maximum period of incarceration upon revocation. 18 U.S.C. § 3583(e)(3). There is no maximum term of supervised release that may be re-imposed. 18 U.S.C. § 3583(h); 21 U.S.C. § 841(b)(1)(C).

         The Policy Statements in Chapter 7 of the Sentencing 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. See United States v. Perez-Arellano, 212 Fed.Appx. 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, Defendant's admitted conduct would qualify as a Grade C violation with respect to Violation #1 and a Grade B violation with respect to Violation #2. Given Defendant's criminal history category of III (the category at the time of the conviction in this District) and a Grade B violation, his Range, under the Revocation Table of Chapter 7, is eight to fourteen months. U.S.S.G. § 7B1.4(a).

         The government argued for revocation with an above-Guidelines term of imprisonment, eighteen months, followed by no supervised release. The government argued for a sentence above the Guidelines Range because Defendant's original sentence was below the Guidelines Range. It emphasized Defendant's significant number of violations and that this is his fourth violation since his initial release from incarceration. The government noted that Defendant's criminal history shows violent conduct and significant substance abuse. Regarding the need to protect the public, the government noted that both the underlying offense and his current violation involved controlled substances, and it emphasized the cyclical nature of drug abuse as addicts begin trafficking to support their addiction. The government stressed the fact that Defendant has received multiple opportunities to receive substance abuse treatment, but that none have been successful. It concluded that no treatment opportunities remained, so the government did not recommend any term of supervised release to follow a term of incarceration.

         Counsel for Defendant argued for a sentence of eight months of imprisonment followed by one year of inpatient substance abuse treatment and a few months of supervised release, or alternatively, eight months of imprisonment followed by ninety days of substance abuse treatment and a longer term of supervised release. Counsel also recommended that the Court ...


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