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United States v. Daugherty

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

May 22, 2019

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

          RECOMMENDED DISPOSITION

          Hanly A. Ingram, United States Magistrate Judge

         On referral from Chief Judge Caldwell (D.E. 820), the Court considers reported violations of supervised release conditions by Defendant Michael Daugherty. This is his second revocation.

         Chief Judge Caldwell entered a judgment against Defendant in August 2017 following a guilty plea to violating 18 U.S.C. § 922(g)(3), which prohibits firearm possession by a person who unlawfully uses drugs. D.E. 730. Defendant received a prison sentence of 21 months, followed by a three-year term of supervised release. Id. Defendant began his first term of supervised release on February 23, 2018.

         Defendant's first revocation proceedings began with the issuance of a May 9, 2018 report from the United States Probation Office (“USPO”) that charged nine violations. Defendant admitted all nine violations. These included that he failed to participate in a required drug abuse treatment program, that he failed to attend a required GED program, that he used and possessed marijuana, that he used and possessed buprenorphine, that he used and possessed methamphetamine, and that he failed to truthfully answer all questions asked by the probation officer. See D.E. 799. Defendant's release was revoked, and he was sentenced to ten months of imprisonment followed by 26 months of supervised release. D.E. 805. Among his special conditions of supervision was a requirement that, upon release, he reside at a residential re-entry center for four months. Id. at 6. Defendant was released from custody on March 8, 2019, and was immediately admitted to Dismas Charities Manchester.

         I.

         On May 7, 2019, the USPO submitted the Supervised Release Violation Report (“the Report”) that initiated these proceedings. The Report charges three violations. According to the Report, on May 3, 2019, staff at Dismas Charities noticed that Defendant “and other residents were acting erratically and were suspected to be under the influence of an unlawful substance.” Staff collected a urine sample from Defendant. Instant testing yielded positive results for amphetamine and methamphetamine. The specimen was sent to Alere toxicology. The probation officer spoke with Defendant over the phone on May 6, and Defendant admitted that he used methamphetamine on May 3. Defendant was terminated from Dismas Charities Manchester on May 7, 2019. The Terminal Letter from the re-entry center is attached to the Report. After the Report was issued and the initial appearance was conducted, urinalysis results were obtained from Alere on May 11 that confirmed the presence of amphetamine and methamphetamine.

         Violation #1 charges a violation of the condition prohibiting the unlawful use of a controlled substance. Based on Defendant's admitted use of methamphetamine on May 3, 2019, this is a Grade C violation.

         Based on the same methamphetamine use, Violation #2 charges Defendant with violating the conditions that he not commit another federal, state, or local crime and that he not unlawfully possess a controlled substance. Noting the Sixth Circuit's decision that use of a controlled substance includes possession, the report characterizes Defendant's methamphetamine use as a violation of KRS § 218A.1415, first-degree possession of a controlled substance, a Class D felony. This is a Grade B violation.

         Violation #3 charges a violation of Special Condition #10, which required Defendant to complete four months at a residential re-entry center. Based on his termination from Dismas Charities on May 7, this is a Grade C violation.

         The Court conducted an initial appearance pursuant to Rule 32.1 on May 9, 2019, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 822. The United States moved for interim detention; Defendant did not argue for release. Id. Based on the heavy defense burden under 18 U.S.C. § 3143(a), the undersigned remanded Defendant to the custody of the United States Marshal. Id.

         At the final hearing on May 20, 2019, Defendant was afforded all rights due under Rule 32.1 and 18 U.S.C. § 3583. D.E. 823. Defendant competently entered a knowing, voluntary, and intelligent stipulation to all three violations. Id.He admitted using and possessing methamphetamine, and that he was dismissed from the halfway house for that behavior. For purposes of Rule 32.1 proceedings, Defendant admitted the factual basis for each violation as described in the Report. In the Supervised Release context, the Sixth Circuit treats controlled substance use as equivalent to possession. See United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000). The United States thus established all three violations under the standard of § 3583(e).

         II.

         The Court has evaluated the entire record, including the Supervised Release Violation Report and 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.

         Under § 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 being an unlawful drug user in possession of a firearm, a Class C felony. See 21 U.S.C. § 922(g)(3); 18 U.S.C. § 3559(a)(3). For a Class C felony, the maximum ...


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