United States District Court, E.D. Kentucky, Southern Division, London
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
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.
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.
April 2017, the Defendant's supervised release was
revoked for the first time after he was found guilty of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.
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
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.
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.
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
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.
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.]
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)