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United States v. Spears

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

October 29, 2018

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SHEENA SPEARS, DEFENDANT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Edward B. Atkins United States Magistrate Judge

         INTRODUCTION

         On October 23, 2018, Sheena Spears appeared before the undersigned for a final hearing on charges of having violated the conditions of supervised release. Spears was present at the hearing and represented by Gerald R. DeRossett, Esq. The United States was represented by Jenna Reed, Esq. During the hearing, Spears stipulated to all violations as alleged and was advised of her right of allocution before the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Spears be found GUILTY of Violations 1, 2, 3 and 4, and sentenced to fourteen (14) months of incarceration with no term of supervised release to follow.

         FACTUAL BACKGROUND

         On April 4, 2011, Sheen Spears was sentenced to a below guidelines sentence of 30 months imprisonment to be followed by 10 years of supervised release after pleading guilty to Conspiracy to Distribute Oxycodone in violation of Title 21 U.S.C. § 846. She was released to supervision on March 13, 2013. However, on June 22, 2016, Ms. Spears appeared before the Court and admitted to having both possessed and used methamphetamine on October 30, 2015. In addition, Spears admitted to failing to notify her supervising officer of having been arrested on October 15, 2015. She was allowed to remain on supervision at that time to attend in-patient substance abuse treatment.

         Next, on May 26, 2017, the Court was again notified that Spears was in violation of the conditions of supervision. On July 6, 2017, she again admitted to possessing and using methamphetamine, violations for which her supervision was revoked and she was sentenced to ten months imprisonment with five years of supervision to follow.

         She was released to begin her second term of supervision on July 11, 2017, after the Bureau of Prisons awarded her time served regarding a related Magoffin County case. However, on January 30, 2018, the Court was again notified that Spears was in violation of her conditions of supervision due to possessing and using methamphetamine. Prior to a final hearing on the matter, the Court was also notified that Spears was in non-compliance for failing to follow the directions of her probation officer. Due to these violations her supervision was revoked for the third time on March 13, 2018, and she was sentenced to eight months imprisonment with three years of supervision to follow. She began her third term of supervision on September 21, 2018. She in now before the Court on the following violations:

1. Violation No. 1 charges that on September 26, 2018, Spears admitted her possession and use of oxycodone and methamphetamine to the United States Probation Officer, conduct in violation of Mandatory Condition No 3, requiring that she “must refrain from any unlawful uise of a controlled substance”
2. Violation No. 2 charges that because Spears unlawfully used oxycodone and methamphetamine she is also guilty of having possessed those controlled substances, conduct in violation of Mandatory conditions 1 and 2, requiring that she not commit another federal, state, or local crime and not unlawfully possess a controlled substance.
3. Violation No. 3 charges that on October 10, 2018, Spears admitted to having used and possessed suboxone in violation of Mandatory Condition No. 3, requiring that she refrain from the unlawful use of a controlled substance.
4. Violation No. 4 charges that because Spears unlawfully used suboxone she is also guilty of having possessed that controlled substance, conduct in violation of Mandatory conditions 1 and 2, requiring that she not commit another federal, state, or local crime and not unlawfully possess a controlled substance.

         At her Final Revocation Hearing, Spears was represented by counsel and afforded all rights due under Fed. R. Crim. P. 32.1 and 18 U.S.C. § 3583. Spears entered a knowing, voluntary, and intelligent stipulation to violations 1, 2, 3, and 4, after having been found to be competent by the undersigned. For purposes of the Fed.R.Civ.P. 32.1 proceedings, Spears admitted the factual basis for all charged violations as described in his Supervised Release Violation Report and the Addenda thereto. In the supervised release context, the Sixth Circuit treats use of a controlled substance as equivalent to possession of that substance. United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000). Possession of a controlled substance is a violation of Ky. Rev. Stat. § 218.1415 and 21 U.S.C. § 844(a). Thus, the United States established all violations under the standard of 18 U.S.C. § 3583.

         Spears' right of allocution before the United States District Judge assigned to his case was preserved.

         RECO ...


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