United States District Court, E.D. Kentucky, Southern Division, London
A. INGRAM, UNITED STATES MAGISTRATE JUDGE
referral from District Judge Boom (D.E. 7), the Court
considers reported violations of supervised release
conditions by Defendant Michael Bowling. This case was
recently transferred from the Western District of Kentucky.
Simpson entered a judgment against Defendant in February 2013
following a guilty plea to conspiracy to distribute cocaine
and conspiracy to distribute marijuana. D.E. 1-3. Defendant
was sentenced to 63 months of imprisonment, followed by five
years of supervised release. Id. at 2-3. His
imprisonment sentence was reduced to sixty months in January
2015. D.E. 1-4. He began his term of supervised release on
June 27, 2016.
September 2016, the United States Probation Office
(“USPO”) referred Defendant for a substance abuse
assessment, and treatment was not recommended.
February 12, 2019, the USPO submitted a Supervised Release
Violation Report (“the Report”) that initiated
these proceedings. It charges six violations, one of which
the government eventually moved to dismiss. According to the
On November 25, 2018, the defendant was arrested and charged
in Jefferson County District Court, Louisville, Kentucky,
case number 18-F-19542, with one (1) count of Theft By
Unlawful Taking $500 or More but Under $10, 000 (KRS
514.030(2)(D), a Class D felony, term of imprisonment not
less than 1 year nor more than 5 years). . . . The defendant
was released on a personal recognizance bond on November 26,
2018. He is scheduled to appear for a preliminary hearing on
March 15, 2019.
on this arrest on a Class D Kentucky felony, the Report
charges in Violation #1 a violation of the supervised release
condition requiring that Defendant not commit another
federal, state, or local crime. Although the Report contains
a typographical error here, as acknowledged by counsel for
the parties, this is a Grade B violation.
Violation #2, the Report notes that the arrest occurred in
Louisville, in the Western District of Kentucky. Violation #2
charges a violation of the condition that Defendant not leave
the Eastern District without permission of the Court or the
probation officer. Because Defendant did not obtain this
permission, the Report charges a Grade C violation. At the
final hearing, the government moved to dismiss this charge on
the basis that, at the time of the arrest, Defendant's
supervision might not have been transferred from the Western
District to the Eastern District.
#3 charges a violation of the condition requiring Defendant
to report any arrest to the probation officer within 72
hours. Because Defendant did not notify the officer of the
November 2018 arrest, Defendant is subject to another Grade C
#4 charges a violation of the condition forbidding Defendant
from associating with any person convicted of a felony
without permission from the probation officer. According to
the Report, “Upon questioning by this Officer, the
defendant admitted he knew his codefendant in the case noted
in Violation #1, Richard “Rick” Lee Kelly, was a
convicted felon.” This is a Grade C violation.
#5 charges a violation of the condition prohibiting the use
of any controlled substance, except as prescribed by a
physician. According to the Report, a urine specimen
collected on January 31, 2019, tested positive for marijuana
metabolite upon instant testing. Defendant denied using
marijuana. But on February 5, Alere Toxicology confirmed the
positive marijuana result. The specimen was also diluted.
This is a Grade C violation.
Violation #6 charges a violation of the condition prohibiting
the commission of another federal, state, or local crime and
the condition prohibiting unlawful possession of a controlled
substance. Noting the Sixth Circuit's decision that use
of a controlled substance includes possession, the report
characterizes Defendant's marijuana use as a violation of
21 U.S.C. § 844(a), possession of marijuana, a Class E
felony. This is a Grade B violation.
Court conducted an initial appearance pursuant to Rule 32.1
on March 4, 2019. D.E. 8. Defendant conceded probable cause
regarding the alleged violations and waived his right to a
preliminary hearing. Id. The United States moved for
interim detention; Defendant did not argue for release.
Id. Based on the heavy defense burden under 18