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United States v. Bowling

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

March 26, 2019



          Hanly A. Ingram United States Magistrate Judge

         On referral from District Judge Van Tatenhove (D.E. 847), the Court considers reported violations of supervised release conditions by Defendant Ewing Bowling.

         Judge Van Tatenhove entered a judgment against Defendant in March 2015 following a guilty plea to participating in a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. D.E. 702. He received a prison sentence of 60 months, followed by a three-year term of supervised release. Id. Defendant began his term of supervised release on January 22, 2018.


         On December 4, 2018, the United States Probation Office (USPO) issued the Supervised Release Violation Report (“the Report”) that initiated these proceedings. The report charges two violations. According to the Report, the probation officer conducted a home visit on November 5, 2018, and obtained a urine sample from Defendant. Defendant said the sample would likely test positive for methamphetamine, which it did. Defendant said he had used the drug as a “pick-me-up” at work, since he had been working long hours. Defendant signed an admission form.

         Another meeting occurred on November 21. The probation officer “had prepared a modification to submit to the Court in which Mr. Bowling would be required to serve three weekends of intermittent confinement as a punitive measure for the above described urinalysis results.” However, the officer obtained another urine specimen on this date which tested positive for methamphetamine upon instant testing. Defendant signed another admission form, stating that he had used methamphetamine four to five days prior to give him more energy for work.

         Violation #1 charges a violation of the condition that Defendant not, among other things, “purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician.” This charge is based on the positive drug tests of November 5 and November 21, 2018, and Defendant's signed acknowledgements that he had knowingly used methamphetamine. This is a Grade C violation.

         Violation #2 charges a violation of the condition that Defendant not commit another federal, state, or local crime. Noting the Sixth Circuit's decision that use of a controlled substance includes possession and Defendant's prior drug conviction, this violation charges Defendant with conduct that would be a federal crime, that is, possession of methamphetamine, a Schedule II controlled substance. Such conduct would be a Class E felony pursuant to 21 U.S.C. § 844(a), Simple Possession of a Controlled Substance. This is a Grade B violation.

         The Court conducted an initial appearance on the Report, pursuant to Rule 32.1, on February 25, 2019, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 851. The United States moved for interim detention; Defendant argued for release. Id. The Court found that Defendant met his burden under Rule 32.1(a)(6) and released him on his current conditions of supervision. Id.

         On March 5, the day before the scheduled final hearing, the USPO released an Addendum to the Report. The Addendum charges a third violation, a Grade C violation, for failing the follow the instructions of the probation officer. As the Addendum explains, the officer applied a sweat patch to Defendant's arm after the initial appearance and instructed him that, “should the condition of the sweat patch change in any way, he was to contact this officer immediately to advise.” The Addendum explains that Defendant reported to the Lexington Probation Office on March 5. A urine screen tested negative. However, the sweat patch had become “partially separated from the skin” and a piece of tape was holding it on. Defendant stated that “on or about Saturday, March 2, 2019, the adhesive cover began to come loose, ” yet he did not inform the probation officer until the office visit three days later. The Addendum is accompanied by pictures of the partially-detached sweat patch. The sweat patch was sent for testing.

         The final hearing on March 6 was converted to an initial appearance on the Addendum's Violation #3. D.E. 852. Defendant waived his right to a preliminary hearing on that charge. Id. He did not argue for release pending the final hearing, and he was remanded to the Marshal's custody. Id.

         On March 21, the Court received a lab report on the sweat patch containing negative results for the tested controlled substances.

         At the final hearing on March 22, 2019, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 854. Defendant competently entered a knowing, voluntary, and intelligent stipulation to all three violations. Id. He admitted that he had used and possessed methamphetamine and that he failed to inform his probation officer that the sweat patch had become partially detached. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for the violations as described in the Report and Addendum. In the Supervised Release context, the Sixth Circuit treats controlled substance use as equivalent to possession. See United ...

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