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United States v. Phillips

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

March 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SUZANN JUDY PHILLIPS, Defendant.

          RECOMMENDED DISPOSITION

          Hanly A. Ingram United States Magistrate Judge

         The Court, on referral, considers reported supervised release violations by Defendant Suzann Judy Phillips. See D.E. 1239. District Judge Van Tatenhove imposed a judgment against Defendant on October 15, 2015, following her guilty plea to the lesser-included offense of conspiracy to manufacture a mixture or substance containing methamphetamine. D.E. 1002 at 1. Defendant was originally sentenced to twenty-eight months of imprisonment and a six-year term of supervised release. Id. at 2-3. Defendant was released from the custody of the Bureau of Prisons (“BOP”) on November 23, 2016, to begin service of her term of supervision.

         I.

         On January 17, 2019, the United States Probation Office (“USPO”) issued a Supervised Release Violation Report (“the Report”) charging Defendant with three violations. The USPO secured a warrant from Judge Tatenhove on the same day. See D.E. 1239; D.E. 1240.

         The Report provides the following background regarding the violations. On November 9, 2018, a sweat patch (“SP #1”) was applied to Defendant in order for the USPO to be able to monitor her use of controlled substances. Defendant removed the sweat patch the following day and told the USPO that she “scratched it off” while she was sleeping. Defendant reported to the probation office as directed on November 13, with the sweat patch, which was forwarded to Pharmchem Inc. for testing. SP #1 tested positive for cocaine. During Defendant's office visit on November 13, another sweat patch (“SP #2”) was applied to again allow the USPO to monitor her drug use. On November 19, this sweat patch was removed and forwarded to Pharmchem Inc. for testing. SP #2 tested positive for cocaine and methamphetamine/amphetamine.

         Defendant reported to the probation office on November 30 to discuss the results of SP #1 and SP #2. At that time, she admitted to the use of both cocaine and methamphetamine. Based on Defendant's admission, and because it was her first discovered violation, the USPO provided Judge Van Tatenhove with a Report on Offender Under Supervision (12A) requesting that no action be taken by the Court. The 12A was approved on December 10. See D.E. 1228.

         On November 30, another sweat patch (“SP #3”) was applied to Defendant. SP #3 was removed on December 12. SP #3 tested positive for methamphetamine/amphetamine. On December 12, a fourth sweat patch (“SP #4”) was applied to Defendant, and it was removed on December 27. SP #4 tested positive for methamphetamine/amphetamine and cocaine.

         On December 27, a fifth sweat patch (“SP #5”) was applied to Defendant during her visit to the probation office. SP #5 was removed on January 4, 2019, and tested positive for methamphetamine, oxycodone, and opiates. Finally, a sixth sweat patch (“SP #6”) was applied to Defendant during her office visit on January 4. SP #6 was removed on January 14 and tested positive for methamphetamine.

         During Defendant's visit to the probation office on January 14, Defendant was questioned about the results of SP #4. Initially, Defendant said that her son's fiancée might have “set [her] up, ” but following additional questioning, Defendant advised that she had snorted morphine that might have contained cocaine. Further, regarding the sweat patches that tested positive for methamphetamine/amphetamine, officials from Pharmchem Inc. advised the USPO that those results could be the residual effects of the drugs in Defendant's system from her admitted use in November 2018. Thus, the Report does not seek to hold Defendant accountable for her continuing to test positive for methamphetamine/amphetamine in the sweat patch results because that use was addressed by the Court's approval of the 12A.

         Based on the positive results of SP #4 for cocaine, and based on Defendant's admission to snorting morphine that might have contained cocaine, the Report alleges that Defendant violated the condition of her supervised release that states: “The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician.” This conduct would constitute a Grade C violation. See U.S.S.G. § 7B1.1(a)(3).

         Citing this conduct, the Report next alleges that Defendant violated the condition of her supervised release that states: “The defendant shall not commit another federal, state, or local crime.” Here, the Report notes that cocaine is a Schedule II Controlled Substance, and accordingly, “[d]ue to the defendant's prior conviction for a controlled substance offense, and with the Sixth Circuit Court of Appeals' ruling that use is the equivalent of possession, simple possession of cocaine constitutes conduct that would result in a violation of 21 U.S.C. § 844(a), a Class E Felony.” This conduct would constitute a Grade B violation. See U.S.S.G. § 7B1.1(a)(2).

         Additionally, the Report alleges that, on December 10, 2018, Defendant was arrested by an officer of the Corbin Police Department based on a Warrant of Arrest - Complaint Warrant. According to the complaint, Defendant stole $385 worth of merchandise from Belk in Corbin, Kentucky, on November 21, 2018. During Defendant's visit to the probation office on December 12, Defendant told United States Probation Officer Scott Greiwe about the arrest, but denied having stolen any merchandise from Belk. Defendant later admitted the theft to Officer Greiwe.

         On January 8, 2019, Defendant pled guilty to Theft by Unlawful Taking - Shoplifting Under $500, in violation of KRS § 514.030, a Class A Misdemeanor under Kentucky law, in Knox (County) District Court. Defendant was sentenced to 360 days of jail, conditionally discharged for twenty-four months, a fine and court costs, and $385 in restitution to Belk. Defendant is also to have no contact with Belk in Corbin. Based on this incident, the Report alleges that Defendant violated the condition of her supervised release that states: “The ...


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