United States District Court, E.D. Kentucky, Southern Division, London
GREGORY WEHRMAN UNITED STATES MAGISTRATE JUDGE.
referral from District Judge Van Tatenhove (D.E. 950), the
Court considers reported violations of supervised release
conditions by Defendant Thomas “Ray” Engle.
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.
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.
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
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.
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).
#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.
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
#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