United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram United States Magistrate Judge
referral from District Judge Van Tatenhove (D.E. 847), the
Court considers reported violations of supervised release
conditions by Defendant Ewing Bowling.
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.
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.
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.
#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.
#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.
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.
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
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
March 21, the Court received a lab report on the sweat patch
containing negative results for the tested controlled
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