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United States v. Bowling

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

March 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL BOWLING, Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM, UNITED STATES MAGISTRATE JUDGE

         On 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. D.E. 1.

         Judge 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.

         In September 2016, the United States Probation Office (“USPO”) referred Defendant for a substance abuse assessment, and treatment was not recommended.

         I.

         On 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 Report:

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.

         Based 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.

         For 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.

         Violation #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 violation.

         Violation #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.

         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.

         Finally, 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.

         The 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 ...


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