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United States v. Canada

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

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BOBBY DARRELL CANADA, II, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram, United States Magistrate Judge.

         On referral from District Judge Van Tatenhove (D.E. 1158 at 2), the Court considers reported violations of supervised release conditions by Defendant Bobby Canada, II. Judge Van Tatenhove entered a judgment against Defendant on July 8, 2014, following a guilty plea to conspiracy to manufacture fifty grams or more of a methamphetamine mixture. D.E. 662. Defendant was sentenced to forty-one months of imprisonment followed by forty-eight months of supervised release. Id. On September 17, 2015, Judge Van Tatenhove, pursuant to 18 U.S.C. § 3582(c)(2), reduced Defendant's sentence to thirty-three months. D.E. 990. Defendant began his first supervised release term on November 6, 2015. He then committed multiple violations.

         On February 11, 2016, a Report on Offender Under Supervision was issued by the United States Probation Office (USPO). D.E. 1033. The report indicated that Defendant provided a urine specimen that tested positive for oxycodone, amphetamine, and buprenorphine following an admission of use to the USPO. Id. Judge Van Tatenhove approved the USPO's request for no action, and Defendant was referred to outpatient substance abuse counseling. Id. On April 20, 2016, the USPO submitted a Request for Modifying the Conditions or Term of Supervision with Consent of the Offender after Defendant provided urine specimens that tested positive for methamphetamine and twice for oxycodone. D.E. 1044. The USPO requested that Defendant be required to pay for and complete an Intensive Outpatient Program (IOP) and to report to the USPO for weekly drug testing for a period of three months. Id. Judge Van Tatenhove approved the Request on April 20, 2016. Id.

         On May 26, 2016, the USPO submitted a Supervised Release Violation Report after Defendant's urine tested positive for oxymorphone, a metabolite of oxycodone. D.E. 1057. The Supervised Release Violation Report charged Defendant with two violations stemming from this conduct. Id. at 2. First, it charged him with violating the condition of his release that required him to “not purchase, possess, use, distribute, or administer any controlled substance . . . except as prescribed by a physician.” Id. Second, it charged him with violating the condition that he “not commit another federal, state, or local crime.” Id. Consistent with the undersigned's recommendation (id.), Judge Van Tatenhove revoked Defendant's supervised release and sentenced him to seven months of imprisonment followed by forty-eight months of supervised release. D.E. 1069. Defendant was released from custody on January 10, 2017, to begin his second term of supervised release.

         On April 3, 2017, the USPO submitted a Report on Offender Under Supervision and requested that the Court take no action after Defendant admitted to using buprenorphine and his urine subsequently tested positive for such use via an instant testing device. D.E. 1103. Judge Van Tatenhove approved the USPO's request and Defendant began a ninety-day inpatient drug treatment program. Id. He completed the inpatient treatment program on July 20, 2017, and was referred to an outpatient treatment program.

         I.

         On March 23, 2018, the USPO submitted another Supervised Release Violation Report (the “Report”). The Report charges Defendant with two violations of his supervised release. First, in Violation #1, the Report alleges that Defendant violated Standard Condition #7, which requires him to “not purchase, possess, use, distribute, or administer any controlled substance . . . except as prescribed by a physician.” Specifically, the Report alleges that, on March 19, 2018, Defendant admitted to using buprenorphine and provided a urine specimen that tested positive for buprenorphine and methamphetamine via an instant testing device. Defendant signed an admission form acknowledging buprenorphine use, but he denied any methamphetamine use. This is a Grade C Violation. Second, in Violation #2, the Report charges Defendant with a violation of the condition of his supervised release that requires that he “not commit another federal, state, or local crime.” This Violation is based on Defendant's possession of buprenorphine, which, given Defendant's prior drug conviction, is a violation of 21 U.S.C. § 844(a) and a Class E felony. This is a Grade B violation.

         On March 29, 2018, the USPO submitted a Supervised Release Violation Report Addendum (“the Addendum”), which charges Defendant with two additional violations. As Violation #3, the Addendum charges Defendant with violating Standard Condition #7, which requires him to “not purchase, possess, use, distribute, or administer any controlled substance . . . except as prescribed by a physician.” Specifically, the Addendum alleges that the urine specimen submitted on March 19, 2018, ultimately tested positive for methamphetamine via laboratory testing. As Violation #4, the Addendum alleges that Defendant violated the condition of his supervised release that requires him to “not commit another federal, state, or local crime.” This Violation is based on Defendant's possession of methamphetamine, which, given Defendant's prior drug conviction, is a violation of 21 U.S.C. § 844(a) and a Class E felony. This is a Grade B violation.

         The Court conducted an initial appearance on April 12, 2018, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 1164. The United States moved for interim detention and Defendant did not argue for release. Id. Based on the heavy defense burden under 18 U.S.C. § 3143(a), Defendant was remanded to the custody of the United States Marshal. Id.

         At the final hearing on April 26, 2018, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 1168. Defendant competently entered a knowing, voluntary, and intelligent stipulation to all four violations. Id. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for all 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). The United States thus established both Violations #2 and #4 under the standard of § 3583(e).

         II.

         The Court has evaluated the entire record, the Report, the Addendum, all accompanying documents, and the sentencing materials from the underlying Judgment. Additionally, the Court has considered all of the § 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 fifty grams or more of a methamphetamine mixture in violation of 21 U.S.C. § 846, which is a Class B felony. See 21 U.S.C. § 841(b)(1)(B)(viii); 18 U.S.C. § 3559(a)(2). For a Class B felony, the maximum revocation sentence provided under § 3583 is three 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 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 admitted conduct would qualify as Grade C violations with respect to Violations #1 and #3 and Grade B violations with respect to Violations #2 and #4. Given Defendant's criminal history category of I (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 four to ten months.[1]

         The United States argued for revocation and a term of imprisonment of twenty-four months - a sentence fourteen months above the Guidelines Range - followed by no term of supervised release. In support of this recommendation, the United States emphasized that Defendant has violated his supervised release many times without revocation. First, Defendant admitted to using oxycodone, amphetamine, and buprenorphine and his urine specimen ultimately confirmed this use on February 4, 2016. D.E. 1033. Judge Van Tatenhove approved the USPO's request that no action be taken. Id. Second, Defendant submitted urine specimens on March 14 and April 7, 2016, that ultimately tested positive for methamphetamine, oxycodone, and opiate use. D.E. 1044. Judge Van Tatenhove approved the USPO's request that Defendant's conditions be modified. Id. Third, Judge Van Tatenhove approved the USPO's request that no action be taken after Defendant admitted to using, and his urine sample tested positive for, buprenorphine on April 3, 2017. D.E. 1103. In addition, Defendant received a middle-of-the-guidelines sentence (seven months of a four to ten month range) for his first revocation when his urine tested positive for oxycodone. D.E. 1069. The United States argued that Defendant's Guidelines Range does not adequately consider his long history of violations and the Court's inability to deter him from criminal conduct.

         Regarding the need to protect the public, the government argued that an above-Guidelines term of incarceration is the best method to protect the public in lieu of an additional term of supervised release. The government stated that the recommended sentence accounts for Defendant's recent dishonesty regarding his methamphetamine use after a long history of honesty with the USPO. However, the government also noted Defendant's stipulation to the ...


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