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United States v. Engle

United States District Court, E.D. Kentucky, Southern Division, London

August 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS RAYMOND ENGLE, Defendant.

          RECOMMENDED DISPOSITION

          J. GREGORY WEHRMAN UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove (D.E. 950), the Court considers reported violations of supervised release conditions by Defendant Thomas “Ray” Engle.

         I.

         Judge Van Tatenhove entered a judgment against Defendant in October 2012 for conspiracy to distribute methamphetamine, conspiacy to retaliate against a government witness, and retaliation against a government witness. D.E. 627. He was sentenced to 54 months of imprisonment on each count (served concurrently), to be followed by six years of supervised release on the drug conspiracy count and three years each on the other two counts (served concurrently). Id. Defendant was first released on May 29, 2015.

         In April 2017, the United States Probation Office (“USPO”) reported that Defendant had violated his release conditions. See D.E. 910 at 2-3. First, a urine specimen tested positive for buprenorphine (a.k.a. suboxone), a Schedule III controlled substance. Second, during a follow-up visit to the Probation Office, Defendant admitted snorting oxycodone, a Schedule II controlled substance. Third, he admitted during the same visit that he had taken suboxone again to manage his withdrawal symptoms from snorting oxycodone. Fourth, he refused to provide a urine specimen during this office visit. This conduct resulted in seven charged violations, and Defendant stipulated to all of them. See id. at 4. The parties jointly recommended a penalty of eight months of incarceration, followed by three years of supervised release. Id. The Court adopted this recommendation. D.E. 926. Defendant began his second term of supervised release on January 5, 2018. He was enrolled in substance abuse treatment from February 21 to May 31.

         II.

         On July 26, 2018, the USPO submitted the Supervised Release Violation Report (“the Report”) that initiated these proceedings. According to the Report,

On July 22, 2018, the defendant was initially arrested by the Barbourville Police Department in Barbourville, Kentucky, on an active bench warrant for the defendant's failure to appear for an arraignment in Laurel County District Court, Case Number, 18-T-01310. A search incident to the arrest revealed several Gabapentin pills in the defendant's possession. The defendant was subsequently charged in Knox County District Court, Case Number, 18-M-00692, with Illegal Possession of a Legend Drug, in violation of Kentucky Revised Statute (KRS) 217.182(7), a Class B misdemeanor. . . . Under Title 902 of Kentucky Administrative Regulations (KAR) 55.015, having statutory authority under KRS 218A.020(1), and (3), Gabapentin is designated as a Schedule V Controlled Substance. The defendant's possession of Gabapentin constitutes conduct in violation of KRS 218A.1417, Possession of a Controlled Substance, Third Degree, a Class A misdemeanor.

         The Report charges a single Grade C violation of two conditions-the conditions prohibiting the commission of another federal, state, or local crime and the condition prohibiting unlawful possession of a controlled substance.

         On August 10, 2018, the USPO issued an Addendum to the Report. The Addendum charges three additional violations. According to the Addendum,

On July 25, 2018, the defendant reported to the probation office to discuss his recent arrest in Knox County District Court, Case Number, 18-M-00692. The defendant additionally provided a urine sample that was sealed, packaged, and prepared to send to Alere Toxicology Services for analysis. Prior to the collection of the urine sample, the defendant was questioned regarding any recent use of controlled substances, specifically Gabapentin. The defendant denied any recent use of Gabapentin or any other controlled substances. On August 9, 2018, a Drug Test Report was received from Alere Toxicology Services regarding the urine sample collected on July 25, 2018, which showed positive laboratory results for Gabapentin. As referenced in the previous Supervised Release Violation Report dated July 26, 2018, Gabapentin is designated as a Schedule V Controlled Substance under Kentucky Administrative Regulations (KAR) and Kentucky Revised Statute (KRS).

         Violation #2 charges a Grade C violation of the condition prohibiting “unlawful use of a controlled substance.” This violation is based on Defendant's use of Gabapentin, as evidenced by the positive drug screen.

         Like Violation #1, Violation #3 charges a violation of the condition prohibiting commission of a crime and the condition prohibiting unlawful drug possession. Drawing on the Sixth Circuit's decision that use is equivalent to possession, this Grade C violation is based on Defendant's possession of Gabapentin, which is a Class A misdemeanor under Kentucky law.

         Violation #4 charges a Grade C violation of the condition that Defendant “must answer truthfully” any question by the probation officer. This violation is based on ...


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