United States District Court, E.D. Kentucky, Southern Division
A. Ingram United States Magistrate Judge
referral from District Judge Van Tatenhove, the Court
considers reported violations of supervised release
conditions by Defendant Ricky D. King. See D.E. 419
at 2. Judge Van Tatenhove imposed judgment against Defendant
on January 26, 2012, for one count of conspiracy to
distribute 500 grams or more of cocaine. See D.E.
271 at 1. Judge Van Tatenhove sentenced Defendant to 72
months of imprisonment followed by five years of supervised
release. Id. at 2-3. Defendant began his initial
term of supervised release on March 6, 2015. In August 2017,
Defendant admitted to violating his conditions of release by
using oxycodone. At that time, Judge Van Tatenhove accepted
the United States Probation Office's (“USPO”)
request that no action be taken. D.E. 366.
supervision was subsequently revoked in December 2016 for his
failure to comply strictly with physicians' orders
regarding medication. See D.E. 391; D.E. 392. For
that revocation, Judge Van Tatenhove adopted the
undersigned's recommendation and sentenced Defendant to
four months of imprisonment to be followed by four years of
supervised release. D.E. 392 at 2-3.
March 10, 2017, Defendant began service on his four-year term
of supervised release. In September 2017, his term of
supervision was revoked for failing to notify the USPO within
72 hours of receiving a prescription and for seeking medical
treatment/prescriptions outside of Kentucky. D.E. 414; D.E.
415. At that time, Judge Van Tatenhove adopted the
undersigned's recommendation and sentenced Defendant to
thirteen months of imprisonment with one year of supervised
release to follow. D.E. 415 at 2-3. Defendant was released
from the custody of the Bureau of Prisons on July 24, 2018,
to begin service of his one-year term of supervised release.
September 7, 2018, the USPO issued a Supervised Release
Violation Report (“the Report”) charging
Defendant with two violations. Defendant's admitted
conduct, as detailed in the Report, forms the basis for both
violations. According to the Report, on September 6, 2018,
Defendant told U.S. Probation Officer Derek Vonckx during a
telephone call that he would be “dirty” if he
were required to submit to a drug screen. Officer Vonckx
contacted Defendant in the community on the same date, and
Defendant admitted that he had used oxycodone on or about
September 4, 2018.
Defendant told Officer Vonckx that the oxycodone used was
remaining medication prescribed to him during his previous
term of supervised release. Defendant provided a urine
sample, which tested positive via instant testing device.
Preliminary test results confirmed Defendant's admission
and showed a positive reading for oxycodone. Defendant signed
a Prob 4 Form (Positive Urinalysis Admission Report), in
which he acknowledged his use of oxycodone on or about
September 4, 2018. During a follow-up telephone conversation
with Defendant, Officer Vonckx questioned Defendant regarding
the circumstances of his use of oxycodone, specifically his
statements regarding the use of an outdated oxycodone
prescription. Defendant told Officer Vonckx he ingested
oxycodone from his previous prescription on the morning of
September 4, but he also admitted he ingested oxycodone that
was not prescribed later in the evening on September 4.
on these actions, the Report alleges that Defendant violated
two conditions of his supervised release. First, the Report
alleges that, by signing the Prob 4 Form on September 6
acknowledging his use on September 4, Defendant violated the
condition of his release that states: “You must refrain
from any unlawful use of a controlled substance. You must
submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter,
as determined by the Court.” This is a Grade C
violation. See U.S.S.G. § 7B1.1(a)(3).
Report alleges as a second violation that Defendant violated
the condition of his release that he “not unlawfully
possess a controlled substance” and the condition that
he “not commit another federal, state or local
crime.” As a basis for this violation, the Report
explains that oxycodone is a Schedule II Controlled
Substance, pursuant to the Controlled Substances Act, and
that, “[d]ue to the Sixth Circuit Court of Appeals'
ruling that use is the equivalent of possession, and with the
defendant's prior drug conviction, possession of
oxycodone constitutes conduct that would result in a
violation of 21 U.S.C. § 844(a), a Class E
felony.” This is a Grade B violation. See
U.S.S.G. § 7B1.1(a)(2).
January 9, 2019, the Court conducted an initial appearance
pursuant to Rule 32.1 of the Federal Rules of Criminal
Procedure and set a final hearing following a knowing,
voluntary, and intelligent waiver of the right to a
preliminary hearing. D.E. 433. At the initial appearance, the
United States made an oral motion for interim detention;
Defendant did not argue for release. Id. Based on
the heavy defense burden under 18 U.S.C. § 3143(a), the
Court remanded Defendant to the custody of the United States
final hearing on January 16, 2019, Defendant was afforded all
rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E.
435. Defendant competently entered a knowing, voluntary, and
intelligent stipulation to both violations. Id. For
purposes of Rule 32.1 proceedings, Defendant admitted the
factual basis for both violations as described in the Report.
The United States thus established the violations under the
standard of § 3583(e)(3). See United States v.
Cofield, 233 F.3d 405, 406 (6th Cir. 2000) (“In
order to revoke supervised release, the sentencing court must
find by a preponderance of the evidence that a defendant has
violated a condition of his supervised release.”).
parties did not agree as to the sentence. The United States
argued for revocation of Defendant's supervision and for
a term of twenty-four months of imprisonment with no
supervised release to follow. Defense counsel, on the other
hand, initially asked for a six-month term at a halfway house
and for the Court to restart Defendant's one-year term of
supervision. Following Officer Vonckx's assessment that a
split sentence is not recommended by the Guidelines in this
case based on Defendant's advisory range, see U.S.S.G.
§ 7B1.3(c)(2), defense counsel requested the lowest
sentence possible for Defendant, either at the low end or
below the Guidelines range. Defendant briefly addressed the
Court and said he recognized there was no excuse for his
§ 3583(e)(3), a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction. Defendant was convicted of
the Class B felony of conspiracy to distribute 500 grams or
more of cocaine. See 21 U.S.C. §§ 846;
841(b)(1)(B); 18 U.S.C. § 3559(a)(2). Defendant's
conviction carries a three-year maximum period of
incarceration upon revocation pursuant to 18 U.S.C. §