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United States v. Marcum

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

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON RAY MARCUM, Defendant.

          MEMORANDUM OPINION & ORDER

          HANLY A. INGRAM, UNITED STATES MAGISTRATE JUDGE

         Defendant Jason Ray Marcum, through counsel, has filed a motion to suppress a statement he made to a United States Probation Officer that forms the basis for two supervised release violations that he currently faces. See D.E. 72. The United States has filed a response to Marcum's motion. See D.E. 73. For the following reasons, the Court will recommend DENIAL of Marcum's motion to suppress (D.E. 72).

         I.

         A brief discussion of Marcum's case provides background to his present motion. In May 2010, District Judge Van Tatenhove entered a judgment against Marcum following his guilty plea to manufacturing less than fifty marijuana plants and to being a felon in possession of a sawed-off shotgun. D.E. 25. Marcum faced higher penalties on the drug count because of a prior state felony drug conviction. See 21 U.S.C. § 851. He was sentenced to a total of 100 months of imprisonment and a four-year term of supervised release. D.E. 25 at 2-3. In October 2016, Marcum was released from the custody of the Bureau of Prisons (“BOP”) to begin service on his term of supervision.

         In April 2017, Defendant's supervised release was revoked after he was found guilty of: the use of controlled substances (methamphetamine and marijuana) and the associated criminal conduct of possession of those drugs; the use of alcohol; the failure to answer truthfully to inquiries by his probation officer; and the commission of a crime (possession of methamphetamine). See D.E. 57. At that time, Defendant was sentenced to twenty-one months of imprisonment with four years of supervised release to follow. See Id. at 2-3. He was again released from BOP custody in August 2018.

         On April 25, 2019, the United States Probation Office (“USPO”) issued a Supervised Release Violation Report (“the Report”) charging Marcum with one violation based on his failure to report to his probation officer as instructed. This conduct constitutes a Grade C violation under U.S.S.G. § 7B1.1(a)(3). On May 7, Judge Van Tatenhove issued a summons for Marcum to appear at an initial appearance on the alleged violation before the undersigned on May 21. See D.E. 61; D.E. 63. Marcum did not appear for that hearing as he had been directed, so a warrant was issued for his arrest. See D.E. 64. At the hearing, the Court provisionally appointed counsel for Marcum. See Id. Marcum was arrested on June 13. See D.E. 68.

         The day after Marcum was arrested, his supervising probation officer, Joey Tyler, visited him at the Laurel County Detention Center. During their conversation, Marcum admitted to Officer Tyler that he had used methamphetamine on June 12, 2019, and he signed a Positive Urinalysis Report stating his use. Officer Tyler did not provide Marcum with a Miranda warning before Marcum admitted to using methamphetamine.[1]

         Following Marcum's admission, Officer Tyler prepared an Addendum to the Report that charges Marcum with two more violations. Specifically, the Addendum charges Marcum with the unlawful use of methamphetamine, a Grade C violation under the Guidelines, and the associated criminal possession of methamphetamine, a Grade B violation under the Guidelines. See U.S.S.G. § 7B1.1(a)(2)-(3).

         Based on Marcum's underlying offenses of conviction, the statutory maximum revocation sentence he faces is two years of imprisonment. See 18 U.S.C. § 3583(e)(3). However, there is no maximum amount of supervised release that the Court may reimpose. See 18 U.S.C. § 3583(h). Further, the potential recommended penalties Marcum would face under the United States Sentencing Guidelines vary depending on whether he is found guilty of a Grade B or Grade C violation. Indeed, if Marcum is found guilty of the Grade B violation, based on his criminal history category of V at the time of his original convictions, his recommended range is eighteen to twenty-four months. See U.S.S.G. § 7B1.4(a). But, if he is found guilty of only a Grade C violation, his Guidelines range is seven to thirteen months. Id. Additionally, the Guidelines recommend mandatory revocation should Marcum be found guilty of a Grade B violation, but not if he is found guilty of a Grade C violation. See U.S.S.G. § 7B1.3(a).

         II.

         On June 17, 2019, the Court conducted an initial appearance on all of Marcum's charged violations. See D.E. 67. A week later, on June 24, the parties appeared before the Court for a final hearing. See D.E. 69. At that hearing, Marcum stipulated to Violation No. 1. See Id. at 1. As to Violations No. 2 and 3, defense counsel represented that, although Marcum would admit to making the statement to Officer Tyler regarding his use of methamphetamine, the defense would argue that the statement should be suppressed because it was obtained in violation of Marcum's rights under the Fifth and Sixth Amendments.

         To build a record concerning the environment in which Marcum admitted his use of methamphetamine to Officer Tyler, the government called Officer Tyler to testify. See D.E. 70. Upon questioning, Officer Tyler testified that, when he met with Marcum at the jail, he did not Mirandize Marcum before asking him questions about compliance with the terms of his supervised release. (Hearing at 21:47-21:57).[2] Officer Tyler said, at that time, Marcum admitted to using methamphetamine two days prior to their meeting and he signed an admission statement to that effect. (Hearing at 21:57-22:03). Officer Tyler further testified that, when he met with Marcum at the jail, he knew that counsel had been provisionally appointed for Marcum and that he did not contact defense counsel before going to speak with Marcum. (Hearing at 22:51-23:12).

         According to Officer Tyler's testimony, his conversation with Marcum about Marcum's use of methamphetamine took place near the booking area of the jail; Marcum was not handcuffed during their conversation. (Hearing at 23:40-23:50). Moreover, Officer Tyler said he did not threaten Marcum in any way and that, if Marcum had requested to end their conversation, he would have honored that request. (Hearing at 25:07-25:36). Their entire meeting lasted about fifteen minutes. (Hearing at 26:38-26:44).

         During their conversation, Marcum mentioned to Officer Tyler that he was scared of Officer Tyler and the government, and he exhibited a level of anxiety about the potential for further incarceration. (Hearing at 27:05-27:26). However, Marcum never requested an attorney before speaking with Officer Tyler, and Officer Tyler and Marcum never discussed that an attorney had been provisionally appointed for Marcum. (Hearing at 27:50-28:10). Finally, Officer Tyler explained that he has not been trained to provide Miranda warnings to individuals ...


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