United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace J. Smith, United States Magistrate Judge.
October 24, 2017, this matter came before the Court for a
Final Revocation Hearing on the United States Probation
Office's Report that Defendant Marocko D. Conley had
violated conditions of his supervised release. Upon call of
this matter at the Final Revocation Hearing, Defendant
admitted to Violations 2 and 3 set forth in the Probation
Officer's October 12, 2017 Supervised Release Violation
Report (R. 143). The Government agreed to dismiss Violation
1. (R. 144). The parties then presented argument on the
appropriate sentence. After hearing from the parties'
counsel as well as Probation Officer Allison Biggs, followed
by a statement from the Defendant, the matter was taken under
submission by the undersigned for preparation of a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
18 U.S.C. § 3401(i). See also United States v.
Waters, 158 F.3d 933, 936 (6th Cir. 1998). For the
following reasons, the undersigned
supervised release be revoked and that he be
sentenced to a 13-month term of imprisonment, with no
term of supervised release to follow.
September 2, 2011, Defendant Marocko D. Conley was sentenced
to 38 months of incarceration, followed by a 36-month term of
supervised release, following a plea of guilty to the
Government's charge of conspiracy to launder money in
violation of 18 U.S.C. § 1956(h). (R. 115). Defendant
began his term of supervised release on March 25, 2015. (R.
now stands before the Court for violating the terms of his
supervised release. The charged violations were presented to
the Court via the Probation Officer's October 12, 2017
Supervised Release Violation Report. (Id.). At the
call of the case for Final Revocation Hearing, defense
counsel informed Defendant intended to admit the charges and
proceed with a determination of an appropriate sentence;
specifically, Defendant would plead to Violations 2 and 3
with the Government to dismiss Violation 1. The undersigned
explained to Defendant the statutory maximum term of
incarceration and supervised release, as well as the
applicable guidelines range.
undersigned further explained that while a recommendation of
an appropriate sentence will be made to the presiding
District Judge, it is ultimately the decision of the District
Judge as to the final sentence to be imposed. Defendant
acknowledged his understanding and stated it was his desire
to plead guilty to Violations 2 and 3. Specifically,
Defendant admitted to the following violations of his
supervised release and the factual circumstances set forth
Violation #2: The Defendant shall refrain
from excessive use of alcohol and 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 #3: The Defendant shall not commit
another federal, state, or local crime. (Grade B Violation).
October 4, 2017, the U.S. Probation Office asked Defendant to
submit to a urinalysis. (R. 143). Upon laboratory testing,
the specimen was positive for oxymorphone. (Id.).
Pursuant to the Controlled Substances Act, oxymorphone is a
Schedule II controlled substance. At the Final Revocation
Hearing, Defendant admitted to using a controlled substance.
Defendant stated that he had asked his neighbor for pain
medication and the neighbor gave him pills that he believed
to be Tylenol 3. Defendant ingested between 2-8 of the pills.
Defendant did not have a prescription for the pills. This is
a Grade C violation.
of oxymorphone, a Schedule II controlled substance, is
equivalent to unlawful possession of oxymorphone. See
United States v. Crace, 207 F.3d 833, 836 (6th Cir.
2000). Accordingly, Defendant's possession of oxymorphone
constitutes conduct that violated federal law, 21 U.S.C.
§ 844(a), in light of his prior drug convictions.
Defendant Conley admitted that his ingestion and therefore
possession of oxymorphone violated that condition of his
supervision that he not engage in new conduct violative of
federal law. This is a Grade B violation.
undersigned is satisfied from the dialogue with Defendant at
the October 24, 2017 Final Revocation Hearing that he
understands the nature of the pending supervised release
violation charges, has had ample opportunity to consult with
counsel, understands that no promises have been made to him
about any final sentence to be imposed in exchange for his
admissions regarding the charges, and that he enters his
admissions to the charges knowingly and voluntarily.
Therefore, based upon Defendant's admissions, the
undersigned finds and will recommend that the District Judge
find that Defendant has violated the conditions of his
supervised release as charged in Violations 2 and 3.
did not waive his right to allocute before the District
Judge, or his right to appeal any sentence imposed by the
District Judge. The parties did not reach an agreement on a
suggested sentence for Defendant. Thus, the Court will now
turn to consideration of the appropriate sanction for the
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