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United States v. Clark

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

March 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DORSEY CLARK, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram United States Magistrate Judge.

         On 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.

         On 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. Id.

         I.

         On 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.

         The 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 Marshal. Id.

         At the 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).

         The 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 Defendant's sentence.

         II.

         The 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.

         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 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).

         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 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.[1]

         The 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.

         Although 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 ...


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