United States District Court, E.D. Kentucky, Southern Division, London
A. Ingram, United States Magistrate Judge.
referral from District Judge Van Tatenhove (D.E. 51), the
Court considers reported violations of supervised release
conditions by Defendant Gregory Joseph Wilcheck.
Van Tatenhove entered a judgment against Defendant in August
2016 following a guilty plea to two counts of bank fraud in
violation of 18 U.S.C. § 1344(2). D.E. 42, 44. He
received a prison sentence of 36 months, followed by a
five-year term of supervised release. D.E. 44 at 1-2. He was
also ordered to pay $1, 408, 970.68 in restitution.
Id. at 5. Defendant began his term of supervised
release on June 6, 2018. On September 18, 2018, Defendant
attended a status conference before Judge Van Tatenhove. D.E.
January 9, 2019, the United States Probation Office
(“USPO”) issued the Supervised Release Violation
Report (“the Report”) that initiated these
proceedings. According to the Report, on December 13, 2018,
Defendant was arrested and charged in Fayette District Court
case 18-T-28945 with driving while under the influence of
alcohol and leaving the scene of an accident. The report
According to the Uniform Citation and DUI Arrest Report, Mr.
Wilcheck was ultimately located at 3808 Salmon Court,
Lexington, Kentucky, after his vehicle was witnessed in a
collision at Trent Boulevard and Man O'War. Mr. Wilcheck
allegedly fled the scene of that location, and a witness
followed him to Gar Court, where he struck a mailbox and
again fled the scene. A dispatched call reported that the
suspect had driven on top of a large woodpile at 3808 Salmon
Court. Upon Lexington Police arriving at the scene, Mr.
Wilcheck and his vehicle smelled of alcoholic beverages, and
he was barely able to hold himself up. An empty 375
milliliter of Barcardi Rum and a blue solo cup filled one
fourth full with rum were located in the vehicle. His speech
was slurred and questions had to be asked of him multiple
times and he became combative. He was then transported to the
hospital [where blood was drawn].
was Defendant's third DUI offense within ten years.
According to Defendant's probation officer, the state
prosecutor believed that one of the aggravators in Ky. Rev.
Stat. § 189A.010(11) was present, meaning that
Defendant's sentence on the state charge would include
mandatory sixty days imprisonment, with a maximum
imprisonment of twelve months. Specifically, the prosecutor
suspected that Defendant's blood alcohol content was
above .15g/100mL, triggering the enhanced punishment.
See KRS § 189A.010(5)(c), (11)(d). This matter
was continued several times as the parties awaited results of
the blood test. In April 2019, the blood drawn from Defendant
on December 13, 2018, revealed an extremely high blood
alcohol content of .331 g/100mL. Defendant is scheduled to
appear in state court on May 6, 2019.
on this arrest, Violation #1 charges a violation of the
condition that Defendant not commit another federal, state,
or local crime. This is a Grade C violation.
#2 charges a violation of the condition requiring Defendant
to make restitution payments. According to the Report,
“Mr. Wilcheck has not paid restitution since October
22, 2018. He has paid a total of $1, 725 towards his total
amount of restitution. His balance owed as of this writing is
$1, 407, 445.68.” This is a Grade C violation. The
government ultimately moved to dismiss this violation on
account of the extenuating circumstances (discussed below)
that made Defendant unable to continue payments.
Court conducted an initial appearance on the Report, pursuant
to Rule 32.1, on January 14, 2019 and set a final hearing
following a knowing, voluntary, and intelligent waiver of the
right to a preliminary hearing. D.E. 53. The United States
moved for interim detention; Defendant asked to continue the
issue generally. Id. Based on the heavy § 3143
defense burden, Defendant was remanded to the custody of the
United States Marshal. Id.
final hearing on April 22, Defendant was afforded all rights
due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 62. The
government moved to dismiss Violation #2, and Defendant
stipulated to Violation #1. He admitted that he had consumed
alcohol before driving, and that he kept driving after
hitting another vehicle and a mailbox. For purposes of Rule
32.1 proceedings, Defendant admitted the factual basis for
this violation as described in the Report. The United States
thus established Violation #1 under the
preponderance-of-the-evidence standard of § 3583(e)(3).
Court has evaluated the entire record, including the Report,
its accompanying documents, and the sentencing materials from
the underlying Judgment. Additionally, the Court has
considered all the § 3553 factors imported into the
§ 3583(e) analysis.
§ 3583(e)(3), a defendant's maximum penalty for a
supervised release violation hinges on the gravity of the
underlying offense of conviction. Defendant pleaded guilty to
two counts of bank fraud in violation of 18 U.S.C. §
1344(2)-a Class B felony. D.E. 42, 44. For a Class B felony,
the maximum revocation ...