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United States v. Scisco

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

March 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ELIZABETH SCISCO, Defendant.

          RECOMMENDED DISPOSITION

          HANLV A. INGRAM UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove, the Court considers a reported violation of a supervised release condition by Defendant Elizabeth Scisco. D.E. 34. District Judge Leon Jordan of the Eastern District of Tennessee entered a judgment against Defendant in January 2010 upon a plea of guilty for conspiracy to manufacture, distribute, and possess with intent to distribute methcathinone, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and conspiracy to possess and distribute pseudoephedrine, knowing it would be used to manufacture methcathinone, in violation of 21 U.S.C. §§ 846 and 841(c)(2). See D.E. 1-2 at 1. Defendant received a sentence of seventy months of imprisonment followed by a thirty-six month term of supervised release. Id. at 2-3. Defendant began her supervised release term on August 8, 2014, and her supervision was transferred to the Eastern District of Kentucky in October 2014. See D.E. 1 at 1.

         I.

         This is not Defendant's first violation of the terms of her supervision. In December 2014, Defendant's supervision was revoked after she admitted to the use of buprenorphine, oxycodone, and morphine, and associated criminal conduct. D.E. 15. Upon the recommendation of the undersigned, Judge Van Tatenhove revoked Defendant's supervised release and sentenced her to fifteen months of imprisonment to be followed by thirty-six months of supervised release. D.E. 13 at 8; D.E. 15 at 2-3. A Request for Modifying the Conditions or Term of Supervision with Consent of the Offender (12B) was approved by the Court in April 2017. D.E. 16. That request was based upon Defendant's arrest in state court on a charge of fourth-degree assault following an altercation with her mother. See Id. at 1-2. In granting the 12B, the Court added a condition requiring Defendant to participate in mental-health treatment at the direction and discretion of the probation office. See Id. at 2-3.

         In October 2017, Defendant's term of supervision was again revoked following her admission to the commission of a crime and failure to report an arrest. See D.E. 30 at 1. At that time, Defendant was sentenced to sixteen months of imprisonment to be followed by twenty-four months of supervised release. Id. at 2-3. That revocation judgment also included a special condition of Defendant's supervision that she was to be placed in a residential re-entry center for a period of six months upon her release from incarceration. See Id. at 5.

         On September 24, 2018, Defendant was released from the custody of the Bureau of Prisons to begin service of her term of supervision, and that date also marked the beginning of her placement into the residential re-entry center at Dismas Charities Manchester. On December 17, 2018, the United States Probation Office (“USPO”) issued a Supervised Release Violation Report (“the Report') charging Defendant with one violation based on her dismissal from that center on December 7, 2018.

         Specifically, the Report alleges that Defendant violated the special condition of her prior revocation judgment that stated: “Upon release from incarceration, the defendant must be placed in a Residential Re-Entry Center for a period of six (6) months.” As grounds for this violation, the Report alleges that, according to correspondence from staff at Dismas Charities Manchester, Defendant was found to have been texting sexually explicit photographs to another resident of the program, which is against the rules of the facility.[1] The correspondence also includes a number of other disciplinary reports filed against Defendant since she began the program in September 2018.

         On December 10, 2018, Defendant reported to the USPO to discuss her termination from the residential re-entry facility. Defendant claimed the termination occurred because she had the contact information of a former Dismas Charities resident in her phone and because she had allowed another resident to use her phone even though the other resident's phone privileges had been revoked. Defendant's reported conduct would constitute a Grade C violation. See U.S.S.G. § 7B1.1(a)(3).

         II.

         The Court conducted an initial appearance on the alleged violation pursuant to Federal Rule of Criminal Procedure 32.1 on January 28, 2019. D.E. 36. At that time, Defendant appeared pursuant to a summons. See Id. The United States did not move for detention, and Defendant was released on her current conditions of release. See id.

         On February 13, the parties appeared for Defendant's scheduled final supervised release violation hearing. D.E. 39. However, recognizing certain discrepancies in Defendant's employment status, the Court continued the final hearing to February 25. See Id. On that date, Defendant's final hearing proceeded as scheduled. D.E. 40. Defendant waived a formal hearing and stipulated to the violation set forth in the Report. Id. The Court found the stipulation was competently, knowingly, voluntarily, and intelligently entered. Id.

         Notably, Defendant qualified the scope of her stipulation by explaining that she had allowed another inmate to use her phone and had told the inmate to delete the exchanged messages, which she knew was in violation of the facility's rules. Defendant denied sending sexually explicit photos. Under 18 U.S.C. § 3583(e), the Court must find “by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3); see also 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.”). Defendant's stipulation, even as qualified, permits the Court to find that she engaged in conduct that is a Grade C violation under the Guidelines because her actions violated the rules of Dismas Charities Manchester, which resulted in her termination from that facility. See U.S.S.G. § 7B1.1(a)(3).

         At the final hearing, the government argued that, rather than a lengthy term of imprisonment, the Court should require her to serve eight weekends of intermittent confinement and that she should complete her current term of supervision. The defense joined in the government's request. Defendant addressed the Court, and she thanked the prosecutor for his belief that she can succeed. Defendant also informed the Court that she ...


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