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United States v. Kirby

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

May 23, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
ELLIS KIRBY, Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove (D.E. 74 at 2), the Court considers reported violations of supervised release conditions by Defendant Ellis Kirby. Judge Van Tatenhove entered a judgment against Defendant in December 2010, upon a guilty plea to one count of distributing pills containing oxycodone and one count of possessing a firearm in furtherance of a drug trafficking offense. D.E. 55 at 1. Defendant was sentenced to a total term of 90 months of imprisonment followed by three years of supervised release. Id. at 2-3. In August 2015, Defendant's sentence on the firearm charge was reduced, by operation of a retroactive Guidelines amendment, to 84 months. D.E. 71.

         I.

         Defendant was released on June 3, 2016. In October 2017, the United States Probation Office (“USPO”) reported that Defendant had been arrested on or about July 14, 2017, for being intoxicated in a public place. D.E. 73. Defendant was found to be a passenger in a vehicle driven by his cousin, who was arrested for DUI. Id. The report also indicated that Defendant failed to notify the USPO of the arrest. Id. Defendant also failed to notify his probation officer of a controlled substance prescription, as required by his conditions. At the USPO's request, the Court modified Defendant's conditions to include service of one weekend of intermittent confinement. Id.

         On April 20, 2018, the USPO issued the Supervised Release Violation Report (“the Report”) that initiated these proceedings. According to the Report, during a home visit, the probation officer inspected Defendant's medications. Defendant's hydrocodone bottle had only two tablets remaining. According to the prescription, there should have been eight. Defendant stated that he had taken a tablet the night before. However, a contemporaneous urine specimen returned negative results for opiates.

         Based on these facts, Violation #1 charges a violation of the condition that requires Defendant to, among other things, not use any controlled substance “except as prescribed by a physician.” Failing to take hydrocodone as prescribed is a Grade C Violation.

         The Court conducted an initial appearance pursuant to Rule 32.1 on May 9, 2018, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 78. The United States moved for interim detention; Defendant argued for release. Id. The Court found that Defendant met his burden under 18 U.S.C. § 3143(a) and Rule 32.1(a)(6), and denied the motion for detention. Id.

         At the final hearing on May 22, 2018, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 79. Defendant competently entered a knowing, voluntary, and intelligent stipulation to the violation. Id. For purposes of Rule 32.1 proceedings, Defendant admitted the key factual basis for the violation. Specifically, he admitted taking hydrocodone more frequently than prescribed (more than one every six hours), thus producing the shortage of pills noticed by the probation officer. Defendant still maintained that he had taken a pill the day before his negative urine test, and could not account for the negative opiate result. Nevertheless, his admission that he failed to strictly follow the prescription instructions is sufficient to establish a violation of Standard Condition #7. The United States thus established the violation under the standard of § 3583(e).

         II.

         The Court has evaluated the entire record, including the Report and 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 section 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction.

         Defendant pleaded guilty to the Class C felony of distributing pills containing oxycodone and the Class A felony of possessing a firearm in furtherance of the drug trafficking offense. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 924(c)(1). Section 3583(e)(3) provides a maximum period of incarceration (upon revocation) of two years on the drug conviction and five years on the firearm conviction.

         A court may also re-impose supervised release, following revocation, for a maximum period that usually subtracts any term of incarceration actually imposed due to the violation. See 18 U.S.C. § 3583(b), (h). The post-revocation cap depends on the “term of supervised release authorized by statute for the offense that resulted in the original term of supervised release.” See 18 U.S.C. § 3583(h). Under 18 U.S.C. § 3583(h) and 21 U.S.C. § 841(b)(1)(C), there is no maximum term of supervised release that can be reimposed on the drug distribution conviction. Otherwise, section 3583(h) would provide a five-year maximum term on the firearm charge.

         The bottom line is that his current statutory maximum imprisonment term is five years, with no limit to the ...


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