United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge
March 13, 2018 this matter came before the Court for a
Sentencing Hearing on the United States Probation
Officer's Reports that Defendant Laura J. Bowling had
violated conditions of her supervised release. (R. 87, 107).
Defendant was present in court and represented by Attorney
Eric Eckes, and the Government was represented by Assistant
United States Attorney Anthony Bracke. Senior U.S. Probation
Officer Stacy Suter was also present for this proceeding.
within revocation proceedings started in August 2017 when
Defendant Bowling initially appeared on a violation charge
set forth in an August 15, 2017 Violation Report. (R. 87). A
Final Revocation Hearing was held on September 5, 2017,
during which Defendant Bowling admitted to the violation
charged in that Report. At that time, sentencing was deferred
pending Defendant's participation in further treatment. A
Supplemental Violation Report was subsequently prepared by
the Probation Office, and the March 13, 2018 Sentencing
Hearing also addressed the additional violation charges set
forth in that Supplemental Report. (R. 107; R. 106).
call of the case at the March 13, 2018 Sentencing Hearing,
the parties informed the Court they had reached an agreement
for a recommended disposition. Specifically, Defendant was
prepared to admit to the two additional violation charges in
the March 9, 2018 Supplemental Supervised Release Violation
Report (R. 107) and, in exchange, the Government agreed to a
recommended 4-month term of incarceration, with an additional
new term of supervision being left to the Court's
discretion. For the reasons that follow, the parties'
agreement is an appropriate disposition of this matter, and
therefore it will be recommended that Defendant's
supervised release be revoked and that she be sentenced to a
4-month term of incarceration with a new term of supervision
of 3 years to follow.
Factual and Procedural Background
December 3, 2015, Defendant pleaded guilty to conspiracy to
distribute heroin in violation of 21 U.S.C. § 846. (R.
37; R. 38). On March 31, 2016, presiding District Judge David
Bunning sentenced Defendant to time served (171 days as of
March 31, 2016) with 3 years of supervised release to follow.
(R. 54; R. 64). Defendant's term of supervision began on
March 31, 2016. (R. 87).
October 7, 2016, Probation Officer Suter submitted a Request
for Modifying the Conditions or Term of Supervision with
Consent of the Offender, requesting that Defendant's
conditions be modified to include that she abstain from the
use of alcohol. This Request was submitted after a home visit
in which Officer Suter determined that Defendant had been
drinking alcohol to excess. The Court ordered the
modification of supervision conditions as requested. (R. 66).
On January 18, 2017, Officer Suter once again petitioned the
Court to modify the Defendant's conditions of supervision
to provide that she participate in two weekends of
intermittent confinement. This request was based upon
Defendant being untruthful about her employment status until
after the Probation Officer confronted her with evidence.
Defendant ultimately admitted to having been untruthful with
her Probation Officer, and the Court approved the
modification to conditions as requested. (R. 67).
February 24, 2017, Officer Suter once again petitioned the
Court to modify Defendant's conditions of supervision to
provide that Bowling wear a transdermal alcohol monitor (TAD)
for a 4-month period. (R. 68). This modification was
requested after the Probation Office learned that Defendant
had been admitted to St. Elizabeth Hospital on December 7,
2016 for what appeared to be alcoholic gastritis, having
informed hospital staff that she drank alcohol all day on
Saturday with subsequent vomiting and diarrhea. Defendant
Bowling left the hospital on December 8, 2016 against medical
advice. Given this admission by Defendant to having violated
the condition of her supervision not to consume alcohol,
Officer Suter recommended that Defendant's supervision be
modified to include she wear the transdermal alcohol monitor
for a period of 4 months, and that her intermittent
confinement be removed since she would no longer be able to
serve such confinement while wearing the TAD. District Judge
Bunning ordered this modification of Defendant's
conditions as requested. (R. 68). Defendant wore a TAD device
from March 6, 2017 until its removal on July 4, 2017.
August 15, 2017, Officer Suter submitted a Petition to Judge
Bunning for a summons to be issued for Defendant to appear
and address alleged noncompliance with her supervision. (R.
84). Judge Bunning ordered a summons be issued, and Defendant
came before the Court on August 25, 2017 for an initial
appearance. (R. 86). At that proceeding, the August 15, 2017,
Violation Report setting forth one violation charge was
reviewed with Ms. Bowling and a final hearing was scheduled
for September 5, 2017. (R. 86; R. 87). At that September 5,
2017 final hearing, Defendant admitted under oath to the
following violation of her supervised release:
Violation No. 1: The defendant
shall abstain from the use of alcohol. (Grade C violation).
morning home visit on August 13, 2017, Defendant was observed
by probation officers to be under the influence of alcohol,
as she smelled of alcohol and was slurring her words. A
breath test registered as .103. Defendant subsequently
confirmed to the officers that she had consumed alcohol.
Defendant admitted at this hearing that her consumption of
alcohol violated the above condition of her supervision. (R.
87; R. 90). At the September 5 proceeding, the Court deferred
addressing an appropriate sentence for Defendant's
violation for 6 months at the joint request of the parties,
pending Defendant's participation in increased
therapeutic treatment, a 12-step recovery program, and
wearing of a TAD. (R. 89; R. 90).
appeared for a status conference on December 5, 2017. (R.
92). At that time, her progress was reviewed. Her counselor
reported she had increased treatment sessions and was engaged
in a 12-step recovery program and doing well with her
attendance and participation. She had also been progressing
well with her TAD without incident, although Defendant's
request to remove the TAD for employment reasons was denied
given Defendant's then recent urinalysis was reported as
being dilute. The matter was set for a March 5, 2018
sentencing hearing. (R. 92). The sentencing hearing was
subsequently rescheduled for March 13, 2018. (R. 105).
Suter on March 9, 2018 prepared a Supplemental Violation
Report (R. 107), wherein she provided updated information on
Defendant's compliance. Officer Suter reported that at a
December 11, 2017 home visit, Defendant's urine screen
tested positive for marijuana and Suboxone, with subsequent
laboratory confirmation of the specimen returning positive
for Suboxone. Defendant denied use of controlled substances
to the Probation Officer, including after laboratory
confirmation, and also denied use of Suboxone to her
treatment provider. (R. 107).
case was called on March 13, 2018 for scheduled Sentencing
Hearing on Defendant's admission to Violation No. 1
charged in the August 15, 2017 Report. At that time, the
March 9, 2018 Supplemental Report was reviewed with Defendant
Bowling, including the changes in the potential penalties as
a result of these two new violation charges. (R. 107).
Defendant was given the option of continuing the matter for a
subsequent final revocation hearing given the additional
charges, but indicated she wished to proceed. As noted above,
counsel proceeded to inform the Court that the parties had
reached an agreement: Defendant was prepared to admit to
Violation Nos. 2 and 3 as set forth in the March 9, 2018
Supplemental Report (R. 107) and, in exchange, the United