United States District Court, E.D. Kentucky, Southern Division, London
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE.
referral from District Judge Van Tatenhove (D.E. 43), the
Court considers reported violations of supervised release
conditions by Defendant Isaac Jackson.
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.
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.
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.
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.
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.
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.
in this case is mandatory because Defendant possessed a
controlled substance. 18 U.S.C. § 3583(g)(1).
§ 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. §
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,
Defendant's range, under the Revocation Table of Chapter
7, is 18 to 24 months.
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 ...