United States District Court, E.D. Kentucky, Southern Division, London
A. INGRAM UNITED STATES MAGISTRATE JUDGE.
Court, on referral (D.E. 328 at 2), considers reported
violations of supervised release conditions by Defendant
Leslie Cornett. District Judge Van Tatenhove entered a
judgment against Defendant on January 29, 2015, for
conspiracy to manufacture a mixture containing
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 846. D.E. 267 at 1. Defendant was sentenced to
thirty-two months of imprisonment to be followed by three
years of supervised release. Id. at 2-3. Defendant
began his term of supervised release on October 7, 2016.
December 21, 2017, the United States Probation Office issued
a Supervised Release Violation Report (“the
Report”), and secured an arrest warrant on the same
day. D.E. 329. The Report alleges that Defendant was arrested
by a Kentucky state police officer after a traffic stop on
December 14, 2017. According to the citation, Defendant had a
yellow powder substance in both nostrils and admitted to
snorting a Lorcet pill and smoking marijuana prior to the
traffic stop. The Report also alleges that Defendant failed
to notify his probation officer within seventy-two hours of
the arrest and then failed to report to the probation office
on December 21, 2017, after being directed to do so by his
Report charges three violations stemming from this conduct.
First, as Violation #1, the Report charges that Defendant
violated his supervised release by committing six separate
state crimes. Pursuant to his arrest on December 14,
Defendant was charged with (1) Operating a Motor Vehicle
Under the Influence of Alcohol or Drugs, Aggravating
Circumstances, which is a violation of K.R.S. §
189A.010(5)(a); (2) No Registration Plates, which is a
violation of K.R.S. § 189.170; (3) No Registration
Receipt, which is a violation of K.R.S. § 186.170; (4)
Failure to Produce Insurance Card, which is a violation of
K.R.S. § 304.39-117; (5) Failure of Owner to Maintain
Required Insurance, First Offense, which is a violation of
K.R.S. § 304.39-080; and (6) Disregarding a Stop Sign,
which is a violation of K.R.S. § 189.330. Defendant
eventually pled guilty to Operating a Motor Vehicle Under the
Influence of Alcohol or Drugs, Aggravating Circumstances,
which is a Class B misdemeanor, and was sentenced to fourteen
days in jail. See K.R.S. §§
189A.010(5)(a); 532.020(3). Second, as Violation #2, the
Report charges that Defendant violated Standard Condition
#11, which requires him to “notify the probation
officer within seventy-two hours of being arrested or
questioned by a law enforcement officer.” Third, as
Violation #3, the Report charges that Defendant violated
Standard Condition #2, which requires him “to report to
the probation officer in a manner and frequency directed by
the court or probation officer.” All of these are Grade
Court conducted an initial appearance pursuant to Rule 32.1
on February 22, 2018, and Defendant entered a knowing,
voluntary, and intelligent waiver of the right to a
preliminary hearing. D.E. 342. The United States moved for
interim detention, and 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 Stated Marshal. Id.
Court conducted a final hearing on February 27, 2018, and
afforded all parties the rights due under Rule 32.1(b)(2).
D.E. 344. Based on his guilty plea in Leslie Circuit Court to
the charge of Operating a Motor Vehicle Under the Influence
of Alcohol/Drugs, Aggravating Circumstances, Defendant
entered a knowing, voluntary, and intelligent stipulation to
Violation #1. Id. Defendant also entered a knowing,
voluntary, and intelligent stipulation to Violations #2 and
#3. Id. For purposes of Rule 32.1 proceedings, and
only as to the DUI portion of Violation #1, Defendant
admitted the factual basis for the violations as described in
the Report. The United States thus established all violations
under the standard of § 3583.
parties did not agree as to the sentence. The government
argued for revocation with seven months of incarceration
followed by two years of supervised release. Defense counsel
argued for three months of incarceration followed by two
years of supervised release.
Court has evaluated the entire record, including the Report,
accompanying documents, and the sentencing materials from the
underlying Judgment in this District. Additionally, the Court
has considered all of the 18 U.S.C. § 3553 factors
imported into the § 3583(e) analysis. Under §
3583(e)(3), a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction. Defendant pled guilty to
conspiracy to manufacture a mixture containing
methamphetamine, a Class C felony. See 21 U.S.C.
§ 841(b)(1)(C); 18 U.S.C. 3559(a)(3). For a Class C
felony, the maximum revocation sentence provided under §
3583 is two years of imprisonment. 18 U.S.C. §
3583(e)(3). 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 F. App'x 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). Given Defendant's
criminal history category of I (the category at the time of
the conviction in this District) and Grade C violations,
Defendant's Range under the Revocation Table of Chapter 7
is three to nine months. U.S.S.G. § 7B1.4(a).
United States argued for revocation with a seven-month term
of imprisonment followed by a two-year term of supervised
release. The government explained that, after starting in the
middle of the Guidelines Range, various mitigating and
aggravating factors rendered the seven-month recommendation.
As mitigating, the government noted that Defendant accepted
responsibility and completed over one year of supervised
release before these violations occurred.
Defendant's history and characteristics, the government
argued that the similarities between Defendant's
violation conduct and the underlying offense aggravate.
Defendant violated his pretrial release by failing to report
to the USPO, which, the government argued, is similar to his
failure to report at the direction of his probation officer
on December 21 and within seventy-two hours of his arrest.
The government emphasized that each of these violations
constitute a significant breach of the Court's trust.
Additionally, Defendant's presentence report indicates
that he used Lorcet and methamphetamine during the commission
of his underlying offense. The government argued that this
nexus raises the concern that Defendant's drug use will
cause him to return to drug trafficking, which poses a
dangerous risk to the public.
government also acknowledged Defendant's low criminal
history category of I, but emphasized that his criminal
history includes charges for driving under the influence,
marijuana cultivation, and drug trafficking. Each of these
charges is concerning, the government argued, because they
resemble his violation conduct and create the risk that
Defendant is returning to a pattern of dangerous behavior.
counsel argued that a sentence at the low-end of the
Guidelines Range would better suit the § 3553 factors,
specifically a three-month term of incarceration followed by
two years of supervised release. Regarding the nature and
circumstances of the underlying offense, counsel acknowledged
the large size of the methamphetamine manufacturing
conspiracy, but stressed that Defendant was eligible for the
safety valve provision under § 3553(f) because he was
not a leader in the commission of the underlying offense and
he accepted responsibility. Counsel also noted that Defendant
accepted responsibility for these ...