Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. King

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

January 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RICKY D. KING, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram United States Magistrate Judge

         On 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.

         Defendant's 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.[1]

         On 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 In September 2017, his term of supervision was revoked for failing to notify the USPO within 72 hours of receiving a prescription and for seeking medical treatment/prescriptions outside of Kentucky.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.

         On 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.

         Initially, 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.

         Based 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).

         The 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).

         I.

         On 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 Marshal. Id.

         At the 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.”).

         The 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 actions.

         II.

         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 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. § 3583(e)(3). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.