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United States v. Bowling

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

July 5, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
LAURA J. BOWLING DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         On 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.

         The 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).

         Upon 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.

         I. Factual and Procedural Background

         On 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).

         On 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).

         On 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.

         On 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).

         At a 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).

         Defendant 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).

         Officer 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).

         The 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 ...


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