United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram United States Magistrate Judge.
referral from District Judge Van Tatenhove (D.E. 46 at 2),
the Court considers reported violations of supervised release
conditions by Defendant Dorsey Clark. Judge Van Tatenhove
entered a Judgment against Defendant on April 20, 2012,
following a guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1).
D.E. 44 at 1. Defendant was sentenced to seventy-five months
of imprisonment followed by three years of supervised
release. Id. at 2-3. Defendant began his term of
supervised release on April 14, 2017.
January 18, 2018, the United States Probation Office
(“USPO”) submitted a Report on Offender Under
Supervision indicating that, on December 28, 2017, Defendant
submitted a urine sample that tested positive for oxycodone
and buprenorphine via instant testing. D.E. 45. Defendant
admitted to ingesting a Percoset tablet without a valid
prescription the day before, but denied using buprenorphine.
Id. The urine sample was sent to Alere Toxicology
Services and ultimately tested positive for oxycodone and
buprenorphine. Id. The USPO suggested that the
violation was an isolated incident and requested that
Defendant be allowed to remain on supervised release.
Id. Judge Van Tatenhove approved this request.
February 5, 2018, the USPO issued a Supervised Release
Violation Report (“the Report”) that initiated
this revocation. The Report alleges that a urine specimen
collected on January 24, 2018, ultimately tested positive for
oxymorphone, the metabolite of oxycodone. Defendant
repeatedly denied using any controlled substances since his
previous admission in December, 2017. The Report charges
three violations stemming from this conduct. As Violation #1,
the Report charges that Defendant violated Standard Condition
#7, which requires that Defendant “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.” This
is a Grade C violation. As Violation #2, the Report charges
that Defendant violated the prohibition against committing
another federal, state, or local crime by possessing
oxycodone, which is a violation of 21 U.S.C. § 844(a)
and a Class E felony. This is a Grade B violation. As
Violation #3, the Report charges that Defendant violated
Standard Condition #3, which requires him to “answer
truthfully all inquiries by the probation officer.”
This is a Grade C violation.
Court conducted an initial appearance pursuant to Rule 32.1
on February 21, 2018, and Defendant entered a knowing,
voluntary, and intelligent waiver of the right to a
preliminary hearing. D.E. 49. The United States moved for
interim detention and Defendant did not argue for release.
Id. Due to the heavy 18 U.S.C. § 3143(a)
defense burden, the Court found detention required and
remanded Defendant to the custody of the United States
final hearing held on March 8, 2018, Defendant was afforded
all rights due under Rule 32.1 and 18 U.S.C. § 3583.
D.E. 51. He competently entered a knowing, voluntary, and
intelligent stipulation to all three violations. Id.
For purposes of Rule 32.1 proceedings, Defendant admitted the
factual basis for the violations as described in the Report.
In the supervised release context, the Sixth Circuit treats
controlled substance use as equivalent to possession. See
United States v. Crace, 207 F.3d 833, 836 (6th Cir.
2000). Possession of a controlled substance is a violation of
21 U.S.C. § 844. The United States thus established all
violations under the standard of § 3583(e).
parties agreed to a recommended sentence of twelve months and
one day of incarceration followed by twenty-three months of
supervised release. Defense counsel recommended inpatient
drug rehabilitation treatment as a component of
Court has evaluated the entire record, the Report and
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.
§ 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
possession of a firearm by a convicted felon, which is a
Class C felony. See 18 U.S.C. §§
922(g)(1), 924(a)(2); 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
maximum term of supervised release that may be re-imposed
upon revocation is thirty-six months, less any term of
imprisonment imposed, pursuant to § 3583(e)(3).
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 Fed.Appx.
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).
Under section 7B1.1, Defendant's conduct would qualify as
a Grade C violation with respect to Violations #1 and #3 and
a Grade B violation with respect to Violation #2. Given
Defendant's criminal history category of V (the category
at the time of the conviction in this District) and a Grade B
violation, Defendant's Range under the Revocation Table
of Chapter 7 is eighteen to twenty-four months.
parties jointly recommended twelve months and one day of
incarceration followed by twenty-three months of supervised
release, a sentence below Defendant's Guideline Range.
Defendant's underlying conviction involved possession of
a firearm by a convicted felon. The United States argued that
his underlying conviction and violation conduct both evidence
an inability to comply with the law. Although Defendant's
underlying conviction did not involve drugs, as his violation
conduct did, the government noted that he has a history of
drug use. The government emphasized that Defendant's
Guidelines Range of eighteen to twenty-four months is driven
by his significant criminal history, which includes
non-compliance and violence. As mitigating, the government
acknowledged Defendant's positive employment history
during his current term of supervised release. Regarding the
need to deter criminal conduct and protect the public, the
government argued that incarceration is necessary because
Defendant's drug use promotes illegal drug trafficking,
which endangers the public.
the government disagreed with defense counsel's
recommendation of mandatory inpatient substance abuse
treatment, it did emphasize Defendant's need for
continuing substance abuse treatment at the discretion of the
USPO. A sentence below the Guidelines, the government argued,
would allow Defendant to remain on supervised release and
receive the supervision necessary to address his drug
addiction and protect the public. Additionally, the
government noted that Defendant did not initially accept
responsibility for his drug use and was not honest with
himself about his addiction, so inpatient substance abuse
treatment is inappropriate. In support of the requested
downward departure, the government argued that Defendant
needs continuing supervision and treatment, which can be
provided upon the re-imposition of supervised release. The
government acknowledged that Defendant did not complete the
Residential Drug Abuse Program (“RDAP”) during
his previous incarceration, but argued that Defendant may