United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
A. INGRAM, UNITED STATES MAGISTRATE JUDGE
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).
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.
April 2017, Defendant's supervised release was revoked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
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.
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
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).
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).
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.
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). 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).
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).
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 ...