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United States v. Jackson

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

September 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ISAAC JACKSON, Defendant.

          RECOMMENDED DISPOSITION

          CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove (D.E. 43), the Court considers reported violations of supervised release conditions by Defendant Isaac Jackson.

         Judge Van Tatenhove entered a judgment against Defendant in November 2014 for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). D.E. 40. Defendant received a sentence of 36 months of imprisonment followed by three years of supervised release. Id. at 2-3. Defendant began his supervised release on December 8, 2017. D.E. 46.

         I.

         On August 10, 2018, the United States Probation Office (“USPO”) issued the Supervised Release Violation Report (“the Report”) that initiated these proceedings. According to the Report, on July 9, 2018, Defendant submitted a urine specimen that tested positive for methamphetamine via instant test. Defendant “denied use, ” and the specimen was sent to Alere Toxicology for confirmation. Alere reported on July 17 that the specimen was untestable. On July 25, 2018, Defendant submitted another urine specimen. He again “denied the use of any substances other than his prescribed medication.” But the specimen tested positive for methamphetamine.

         Based on the use of methamphetamine indicated by the urine test, Violation #1 charges a violation of the condition prohibiting Defendant from using any controlled substance except as prescribed by a physician. This is a Grade C violation.

         Based on the same conduct, Violation #2 charges a violation of the condition requiring that Defendant not commit another federal, state, or local crime. Noting the Sixth Circuit's decision that use of a controlled substance includes possession and Defendant's prior drug conviction, the report characterizes Defendant's methamphetamine use as a violation of 21 U.S.C. § 844(a), simple possession of methamphetamine, a Class E felony. This is a Grade B violation.

         Judge Wehrman conducted an initial appearance pursuant to Rule 32.1 on August 27, 2018. D.E. 47. The Court set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. Id. At the initial appearance, the United States made an oral motion for interim detention; defense counsel did not argue for release. Id. The Court found that detention was appropriate in light of the heavy release burden under Rule 32.1(a)(6) and 18 U.S.C. § 3143(a). Id.

         At the final hearing on September 5, 2018, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 50. Defendant competently entered a knowing, voluntary, and intelligent stipulation to both violations. Id. Defendant was sworn and told the Court that he had used and possessed methamphetamine. Because Defendant admitted the factual basis for the violations, the government established Violation #1 and Violation #2 under the standard of 18 U.S.C. § 3583(e).

         II.

         Revocation in this case is mandatory because Defendant possessed a controlled substance. 18 U.S.C. § 3583(g)(1).

         Under § 3583(e)(3), a defendant's maximum penalty for a supervised release violation hinges on the gravity of the underlying offense of conviction. Defendant pleaded guilty to possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). This is a Class C felony. See 18 U.S.C § 3559. For a Class C felony, the maximum revocation sentence provided under § 3583 is two years of imprisonment. See 18 U.S.C. § 3583(e)(3).

         The Policy Statements in Chapter 7 of the Guidelines provide advisory imprisonment ranges for revocation premised on criminal history (at the time of original sentencing) and the “grade” of the violation proven. See United States v. Perez-Arellano, 212 Fed.Appx. 436, 438-39 (6th Cir. 2007). Under § 7B1.1, Defendant's conduct qualifies as a Grade C violation for Violation #1 and a Grade B violation for Violation #2. Given Defendant's Criminal History Category of V (the category at the time of the conviction in this District) and a Grade B violation, [1] Defendant's range, under the Revocation Table of Chapter 7, is 18 to 24 months.

         A court may re-impose supervised release, following revocation, for a maximum period that usually subtracts any term of incarceration imposed due to the violation. See 18 U.S.C. § 3583(b) & (h). The post-revocation cap depends on the “term of supervised release authorized by statute for the offense that resulted in the original term of supervised release.” 18 U.S.C. § 3583(h). Given the nature of Defendant's convictions, pursuant to 18 U.S.C. §§ 922(g)(1) and 3583(h), Defendant is eligible for 36 months of ...


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