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United States v. Cornett

United States District Court, E.D. Kentucky, Southern Division, London

March 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LESLIE CORNETT, Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE.

         The 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.

         On 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 probation officer.

         The 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 C violations.

         I.

         The 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.

         The 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.

         The 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.

         II.

         The 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).

         The 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.

         Regarding 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.

         The 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.

         Defense 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 ...


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