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United States v. Marcum

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

October 15, 2019

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

          ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommended Disposition [R. 76] filed by United States Magistrate Judge Hanly A. Ingram. The Defendant Jason Ray Marcum is charged with three violations of his supervised release conditions. Id. at 3. For the reasons that follow, the Recommended Disposition [R. 76] will be adopted.

         I

         Judgment was originally entered against Mr. Marcum in May 2010, after he pled guilty to one count of manufacturing less than fifty marijuana plants and one count of being a felon in possession of a sawed-off shotgun. [R. 76.] Mr. Marcum was then sentenced to 100 months on both counts, to be served concurrently, followed by a four-year term of supervised release. Id. Mr. Marcum began his term of supervised release in October 2016. Id.

         In April 2017, the Defendant's supervised release was revoked for the first time after he was found guilty of multiple violations, including use of controlled substances (methamphetamine and marijuana) and the associated criminal conduct of use of those drugs, the use of alcohol, the failure to answer truthfully to inquiries by his probation officer, and commission of a crime (possession of methamphetamine). Id. These violations resulted in Mr. Marcum being sentenced to twenty-one months of imprisonment and four years of supervised release to follow. Id. In August 2018, Mr. Marcum was again released and began his additional term of supervision.

         On April 25, 2019, the United States Probation Office issued a Supervised Release Violation Report which initiated these proceedings. Id. at 2. This initial Report charged Mr. Marcum with a single violation, failure to report as instructed to his probation officer, U.S. Probation Officer Joey Tyler. Id. at 3. As a basis for this violation, the Report alleges that, over the course of a month, Mr. Marcum repeatedly failed to meet with or respond to instructions to report by Officer Tyler. Id. at 2-3. This conduct constitutes a Grade C violation. Id. at 3.

         This Court issued a summons for Mr. Marcum to appear at an initial appearance on the alleged violation but again he failed to appear as directed. Id. at 2. Thereafter, the Court issued an arrest warrant and Mr. Marcum was arrested on June 13, 2019. Id. at 3.

         Following his arrest, Mr. Marcum met with Officer Tyler on June 14, 2019 at the Laurel County Detention Center. Id. At that time, Mr. Marcum admitted to using methamphetamine two days prior and signed a Positive Urinalysis Report describing his use. Id. The USPO issued an Addendum to the Report the same day. Id. at 2.

         The Addendum alleges that his admitted methamphetamine use triggered two additional violations of his supervised release conditions. First, Mr. Marcum was to “refrain from any unlawful use of a controlled substance.” Id. at 3. Failure to do so would constitute a Grade C violation. Id. Additionally, the Report alleges that his admitted use of methamphetamine triggered a violation of his agreement not to commit conduct which constituted a “federal, state, or local offense punishable by a term of imprisonment exceeding one year.” Id. at 3; U.S.S.G. § 7B1.1(a)(2). Because of Mr. Marcum's prior drug conviction, use is the same as possession. [R. 76 at 3.] Therefore, his admitted use of methamphetamine is conduct in violation of 21 U.S.C. § 844(a), a Class E Felony. Id. This conduct would constitute a Grade B violation. Id.

         At the final revocation hearing, held on June 24, 2019, Mr. Marcum competently entered a knowing, voluntary, and intelligent stipulation to Violation 1 as charged in the Report, failure to report to his probation officer as instructed. [R. 77 at 4.] However, he exercised his right to a full hearing as to Violations 2 and 3 from the Addendum. Id.

         II

         A

         At the final revocation hearing, Officer Tyler testified as to Mr. Marcum's admission of methamphetamine use as it related to Violations 2 and 3. [R. 76 at 4.] Defense counsel orally moved to suppress the testimony as a violation of Mr. Marcum's Fifth and Sixth Amendment rights. [Id; R. 72.] Magistrate Judge Ingram continued the hearing in order to allow full briefing by the parties on the motion to suppress. [R. 76 at 4.]

         After considering the parties' briefing, Magistrate Judge Ingram issued a memorandum opinion and order recommending denial of the motion to suppress. [R. 74.] First, Judge Ingram found that Mr. Marcum's Sixth Amendment right to counsel claim failed as defendants “have no constitutional right to counsel within the context of supervised release violation proceedings.” Id. at 7. Indeed, the Sixth Circuit has made clear that “there is no constitutional right to the effective assistance of counsel at a supervised release revocation hearing” and further that any entitlement to counsel in this context is statutory. United States v. Lester, 76 F.3d 380 (6th Cir. 1996); see also United States v. Ward, 770 F.3d 1090, 1097-98 (4th Cir. 2014) (“Courts ...


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