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United States v. Jones

United States District Court, E.D. Kentucky, Northern Division, Covington

May 29, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
THOMAS LOWELL JONES, III DEFENDANT

          REPORT AND RECOMMENDATION

          Candace L. Smith United States Magistrate Judge.

         On March 1, 2018, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Reports that Defendant Thomas Lowell Jones, III had violated conditions of his supervised release. Defendant was present in Court and represented by court-appointed counsel Kerry Neff, and the Government was represented by Assistant United States Attorney (AUSA) Elaine Leonhard, appearing on behalf of AUSA Laura Voorhees. U.S. Probation Officer Thomas Barbeau of the Southern District of Ohio was also present for this proceeding pursuant to its courtesy supervision of Defendant.

         Upon call of this matter at the Final Revocation Hearing, counsel informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to admit to the charged violations as set forth in the January 18, 2018 Supervised Release Violation Report (R. 408) and the February 26, 2018 Addendum (R. 409). In exchange, the Government agreed to a recommended term of incarceration of 13 months, with no new term of supervision to follow.

         Upon consideration, the parties' agreement is an appropriate proposed disposition of this matter. Therefore, for the reasons that follow, it will be recommended that Defendant's supervised release be revoked and that he be sentenced to a 13-month term of imprisonment with no supervised release to follow.

         I. Procedural Background

         On September 8, 2016, Defendant pleaded guilty to Conspiracy to Commit Bank Fraud in violation of 18 U.S.C. §§ 1344 and 1349. (R. 128; R. 129). On April 26, 2017, the presiding District Judge sentenced Defendant to 16 months of imprisonment, with credit for time served, to be followed by 5 years of supervised release. (R. 314; R. 317). Defendant's term of supervision began on August 28, 2017 under the courtesy supervision of the Southern District of Ohio.

         Upon Petition by the Probation Office, on December 19, 2017, District Judge Bunning ordered Defendant's release conditions be modified to include substance abuse treatment after November 1, 2017 and December 4, 2017 drug screens were positive for methamphetamine. (R. 396). On January 17, 2018, Officer Barbeau submitted a Petition for Warrant for Offender Under Supervision reporting further supervision compliance issues to the Court; an arrest warrant was ordered. (R. 398). Defendant was arrested and brought before the undersigned on February 21, 2018 for an initial appearance on supervised release violations. (R. 405). The violation charges were presented to the Court via the Probation Office's January 18, 2018 Violation Report. (R. 408). The charges were reviewed with Mr. Jones, the potential penalties were explained, and a final revocation hearing was scheduled. (R. 405).

         Officer Barbeau prepared a February 26, 2018 Addendum providing updated information on some of the charges. (R. 409). Upon call of the case at the March 1, 2018 Final Revocation Hearing, the Court first reviewed the Addendum with Defendant. (R. 407). In particular, the Court pointed out for the parties that violation charge 2, reported as a Grade B violation in the Report and Addendum, was actually a Grade C violation charge. The difference in the potential penalties in light of this change from a Grade B violation charge to now all violation charges being Grade C was discussed. (Id.). As noted above, counsel then informed the Court that the parties had reached an agreement: Mr. Jones was prepared to admit to the violations charged in the January 18, 2018 Report and February 26, 2018 Addendum, and the parties agreed on a recommended sentence of 13 months of incarceration with no new term of supervision to follow.

         At the final hearing, the undersigned reviewed with Defendant the statutory maximum terms of incarceration and supervised release as well as the applicable Sentencing Guidelines range. The undersigned further explained that while a recommendation of an appropriate sanction will be made to the presiding District Judge, it is ultimately Judge Bunning's decision as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to admit to the charged violations. Specifically, Mr. Jones admitted under oath to the following violations of supervised release and the factual circumstances set forth below:

         Violation No. 1: Defendant must refrain from any unlawful use of a controlled substance. (Grade C violation)

         Defendant provided urine samples that tested positive for the presence of methamphetamine on November 1, 2017, and December 4 and 15, 2017. Defendant's January 16, 2018 urinalysis tested positive for methamphetamine and opiates.

         Violation No. 2: Defendant must not unlawfully possess a controlled substance. (Grade C violation)

         As indicated above, Defendant submitted 4 urine samples that tested positive for controlled substances. Under Sixth Circuit law, use of controlled substances also means the Defendant was in possession of those substances, therefore violating federal, state, or local law. United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000). Thus, by using controlled substances, Defendant also possessed those same substances.[1]

         Violation No. 3: Defendant must not commit another federal, state, or ...


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