United States District Court, E.D. Kentucky, Southern Division, London
A. INGRAM UNITED STATES MAGISTRATE JUDGE
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,
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.
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
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.
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.
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.
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.
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. §
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. §
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
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