United States District Court, E.D. Kentucky, Southern Division
Gregory F. Van Tatenhove, United States District Judge
matter is before the Court on the Recommended Disposition [R.
400] filed by United States Magistrate Judge Hanly A. Ingram.
The Defendant, Richard Burns, is charged with four violations
of his supervised release conditions. Id. at 2. The
four violations include that he: committed “another
federal, state, or local crime;” failed to submit to a
drug test; tampered with drug testing; and that he failed to
follow the instructions of his probation officer.
Id. at 2-4. Judgment was originally entered against
the Defendant in April 16, 2014, after Mr. Burns was found
guilty on one count for conspiracy to distribute a quantity
of pills containing oxycodone. Id. at 1. He was
originally sentenced to 57 months followed by a three-year
term of supervised release. Id. Defendant later had
his sentenced reduced to 46 months. Id. at 1. Mr.
Ball began his term of supervised release on May 2016.
March 2018, the Defendant had his supervised release revoked
for the first time after he was found guilty of: use of a
controlled substance - methamphetamine; (2) commission of a
crime; (3) use of a controlled substance - phentermine; and
(4) commission of a crime. Id. at 1. This resulted
in the Defendant being sentenced to three months of
imprisonment and three-years of supervised release.
Id. The Defendant was also ordered to complete a
90-day substance-abuse program. Id.
7, 2018, Burns was again released and began his additional
term of supervision. As ordered by the Court he was able to
complete his substance-abuse program on September 15, 2018.
December 21, the United States Probation Office issued a
Supervised Release Violation Report which initiated these
proceedings. Id. This report alleged four
Report first complains that Burns “commit[ted] another
federal, state or local crime.” Burns violated this
condition when he was arrested for Flagrant Nonsupport in
Laurel District Court. Id. at 2. As the basis for
the Flagrant Nonsupport, the criminal complaint alleged that
the Defendant had failed to pay child support amounting to
$28, 207.29. Flagrant Nonsupport is a violation of KRS §
530.050(2)(a), a Class D felony, and carries a term of
imprisonment of not less than one year but not more than five
years. Id. This conduct would constitute a Grade B
the Burn's arrest, Officer Tyler met with the Defendant
at the Laurel County Detention Center. At that time Officer
Tyler made several attempts to collect a urine sample from
Burns, but he would not produce a specimen. Id. at
3. Failure to timely produce a urine sample is a Grade C
result of Burns failure to produce a urine sample, Officer
Tyler fitted him with a drug sweat patch. Id. at 4.
A drug sweat patch is designed to be worn for up to fourteen
days, more than enough lasting time for Officer Tyler's
return in a few days. Id. Yet, when Officer Tyler
returned the nursing staff was in possession of the patch.
Id. The nurses told Officer Tyler that Burns had
given them the patch after only a couple days. Id.
Despite Burns' explanation that it fell off in the
shower, Officer Tyler believes that Burns had obstructed and
tampered with the patch. Id. This conduct
constitutes a Grade C violation. Id.
Burns was told to appear at the probation office upon his
release from jail. Id. at 5. He failed to do so.
Id. This conduct constitutes a Grade C violation.
final revocation hearing, held on February 5, 2019, Burns
competently entered a knowing, voluntary, and intelligent
stipulation to all violations that had been charged by the
USPO in the Supervised Release Violation Report. [R. 399.] On
February 6, 2019, Magistrate Judge Ingram issued a
Recommended Disposition which recommended revocation of
Burns' supervised release and a term of fourteen months
of imprisonment with no additional term of supervised
release. Id. at 10.
Ingram appropriately considered the 18 U.S.C. § 3553
factors in coming to his recommended sentence. Id.
at 7. Burns has been faced with unfair life obstacles but
those do not excuse his lengthy criminal history.
Id. at 8. His criminal history, and current conduct
leads the Court to believe that he may still be abusing
illegal substances. Id. Continued use risks his life
and future criminal proceedings. Id.
need to deter criminal conduct weighs heavily in this case.
Id. Burns needs to learn that his actions come with
consequences. Id. He must also address his addiction
problem. Id. Unfortunately, there is nothing more
the Court can do to help him on that journey since he has
already completed multiple drug treatment programs.
sentence is the same as the parties' jointly recommended
sentence. While this recommended sentence is at the
higher-end of the range, the prior leniency he received
counsels in favor of a longer sentence. Id.
Moreover, it is clear from Burns' conduct that he does
not want to comply with the terms of his supervision. But
none will be added.
Burns' violations are also a serious breach of the
Court's trust. The Defendant's casual attitude
towards his conditions of release shows a ...