United States District Court, E.D. Kentucky, Southern Division
A. INGRAM UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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
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 §
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.
section 3583(e)(3), a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction.
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.
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.
bottom line is that his current statutory maximum
imprisonment term is five years, with no limit to the