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United States v. Conley

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

February 15, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
MAROCKO D. CONLEY DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith, United States Magistrate Judge.

         On 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 recommends Defendant's supervised release be revoked and that he be sentenced to a 13-month term of imprisonment, with no term of supervised release to follow.

         I. Background

         On 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. 143).

         Defendant 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.

         The 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.[1] Specifically, Defendant admitted to the following violations of his supervised release and the factual circumstances set forth below:

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).
Violation #3: The Defendant shall not commit another federal, state, or local crime. (Grade B Violation).

         On 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.

         Ingestion 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.

         The 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.

         Defendant 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 violative conduct.

         II. Sentencing

         A. Legal Standard and ...


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