United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace L. Smith United States Magistrate Judge.
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.
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.
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.
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
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.
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.
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:
No. 1: Defendant must refrain from any unlawful use of
a controlled substance. (Grade C
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.
No. 2: Defendant must not unlawfully possess a
controlled substance. (Grade C
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
No. 3: Defendant must not commit another federal, state,