United States District Court, E.D. Kentucky, Northern Division at Covington
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge.
December 14, 2017, this matter came before the Court for a
Final Revocation Hearing on the United States Probation
Office's Report that Robert Donald Bancroft had violated
conditions of his supervised release. Defendant was present
in Court and represented by court-appointed counsel Frank
Mungo, and the Government was represented by Supervisory
Assistant United States Attorney Robert K. McBride. U.S.
Probation Officer Stacey Suter was also present for this
call of this matter at the December 14 Final Revocation
Hearing, counsel informed the Court that they had reached an
agreement on the pending violations. Specifically, Defendant
agreed to admit to Violations 3 and 4 as alleged in the
December 13, 2017 Supplemental Violation Report (R. 133). In
exchange, the Government agreed to move to dismiss Violations
1 and 2 as alleged in the December 1, 2017 Violation Report
(R. 129), and to recommend a term of incarceration of 18
months with no new term of supervision to follow. In
addition, the parties each agreed to waive the objection
period to this Report and Recommendation to the extent the
undersigned recommends a sentence consistent with the
parties' agreement. Likewise, Defendant agreed to waive
his right to allocute provided that the undersigned's
recommended sentence reflects the parties' agreement.
(See R. 131). Defendant did not waive his right to
appeal as part of this agreement.
consideration, the parties' agreement is an appropriate
proposed disposition of this matter. Therefore, it will be
recommended that Defendant's supervised release be
revoked and that he be sentenced to an 18-month term of
imprisonment with no supervision to follow.
August 5, 2010, Defendant appeared in U.S. District Court in
Covington, Kentucky, before the Honorable David L. Bunning,
U.S. District Judge, and pled guilty to conspiracy to
distribute explosives without a license in violation of 18
U.S.C. §§ 842(a)(3)(B) and 844(n). (R. 70, R. 97).
On November 10, 2010, Judge Bunning entered Judgment,
sentencing Defendant to a total term of imprisonment of 57
months with a 3-year term of supervised release to follow.
(R. 95, R. 97). On May 30, 2014, Defendant was released from
prison to begin his term of supervision through the United
States Probation Office in Covington, Kentucky. (R. 114).
Thereafter, Defendant was brought before this Court on
allegations that he violated the terms of his supervised
release by using marijuana and alcohol. (See R.
117). After a hearing before the undersigned, and the
issuance of a Report and Recommendation (R. 117), the
presiding District Judge on April 4, 2016, found Defendant to
be in violation of the terms of his supervised release, which
was ordered revoked. (R. 118). Defendant was sentenced to a
12-month term of imprisonment, with a 24-month term of
supervised release to follow. Defendant was released from
custody on March 15, 2017, to commence this new term of
December 1, 2017, Officer Suter petitioned for Defendant to
appear before the Court and address alleged violations of his
supervision. (R. 123). Summons was issued (R. 125), and
Defendant initially appeared on December 11, 2017. (R. 126).
The charged violations were presented to the Court via the
Probation Officer's December 1, 2017 Violation Report.
(R. 129). The violation charges were reviewed with Mr.
Bancroft, the potential penalties were explained, and a final
revocation hearing was scheduled. (R. 126). Defendant was
then remanded into federal custody. (Id.). On
December 13, 2017, the U.S. Probation Officer issued a
Supplemental Violation Report (R. 133), stating that Mr.
Bancroft reported to the U.S. Probation Office in order to
submit a urine screen on December 7, 2017, and that the
results returned as positive for methamphetamine. Two
additional charges, Violations 3 and 4, were presented to the
Court in the Supplemental Violation Report based upon these
positive results. (See id.).
call of the case for the final revocation hearing, the Court
first reviewed the December 13, 2017 Supplemental Violation
Report (R. 133) with Defendant and confirmed that Mr.
Bancroft had an opportunity to review this Supplemental
Report with his counsel. The Court then reviewed the
additional violation charges with Mr. Bancroft and explained
the potential penalties. As noted above, counsel proceeded to
inform the Court that the parties had reached an agreement:
Mr. Bancroft was prepared to admit to Violations 3 and 4 as
set forth in the December 13, 2017 Supplemental Violation
Report (R. 133), and in exchange the Government would move to
dismiss Violations 1 and 2 as set forth in the December 1,
2017 Violation Report (R. 129). The parties further agreed on
a recommended sentence of 18 months of incarceration with no
new term of supervision to follow.
the parties' announcement that they reached an agreement,
the undersigned explained to Defendant that while a
recommendation of an appropriate sanction will be made to the
presiding District Judge, it is ultimately Judge
Bunning's decision as to the final sentence to be
imposed. Defendant acknowledged his understanding and stated
it was his desire to admit to the alleged violations as
agreed by the parties. Specifically, Mr. Bancroft admitted
under oath to the following violations of supervised release
and the factual circumstances set forth below:
Violation No. 3:The defendant shall
not purchase, possess, use, distribute, or administer any
controlled substances or any paraphernalia related to any
controlled substances, except as prescribed by a physician.
(Grade C violation)
specimen collected on December 7, 2017, was reported by the
laboratory as positive for methamphetamine. At final hearing,
Defendant admitted that the United States could show by a
preponderance of evidence that he used methamphetamine during
this time period.
Violation No. 4:The defendant shall
not commit another federal, state, or local crime. (Grade B
Sixth Circuit precedent, Defendant's admitted use of
methamphetamine also means that he was in possession of this
controlled substance. United States v. Crace, 207
F.3d 833, 836 (6th Cir. 2000). Unlawful possession of this
controlled substance constitutes conduct which violates 21
U.S.C. § 844(a) and, given Defendant's prior state
drug convictions, subjects him to a penalty of not less than
90 days and not more than 3 years in prison, thereby
constituting a Grade B violation pursuant to §
7B1.1(a)(2) of the Guidelines. See Id. Defendant
admitted that his use of a controlled substance violated the
condition of his supervision requiring him not to engage in
new conduct that violates federal law.
the Final Revocation Hearing, Defendant was remanded to
custody, pending entry of a final judgment as to his
supervised release violations. (R. 130). The undersigned is
satisfied from the dialogue with the Defendant at the
December 14, 2017 Final Revocation Hearing that he
understands the nature of the violations as charged, he has
had ample opportunity to consult with counsel, and that he
enters his admissions to the violation charges knowingly and
voluntarily. Based on Defendant's admissions to the
violations discussed above, ...