REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On May 3, 2017, this matter came before the Court for a Final Revocation Hearing on the U.S. Probation Office's Amended Violation Report dated April 26, 2017, reporting that Defendant Kevin Mitchell had violated conditions of his supervised release. Defendant was present in Court and represented by Steven N. Howe, and the Government was represented by Assistant U.S. Attorney (AUSA) Elaine K. Leonhard.
Upon call of this matter at the Final Revocation Hearing on Supervised Release Violations, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to plead guilty to the violations as set forth in the April 26, 2017, Amended Violation Report. In addition, Defendant agreed to waive allocution and his right to appeal any sentence ultimately imposed by presiding District Judge Bunning. In exchange, the Government agreed to a recommended sentence of 6 months of imprisonment with 2 years of supervision to follow. The parties also agreed that immediately upon release to the new term of supervision, Defendant shall be placed in a residential treatment program to be determined by the U.S. Probation Office. The undersigned finds that the parties' agreement is an appropriate disposition of this matter, and therefore it will be
On December 3, 2015, Defendant pleaded guilty to conspiracy to distribute heroin in violation of 21 U.S.C. § 846. (R. 43). On March 31, 2016, the Court sentenced Defendant to 18 months of imprisonment with a 3-year term of supervised release to follow. (R. 63). Defendant's period of supervision began on February 2, 2017. (R. 70).
On April 19, 2017, United States Probation Officer (USPO) Melissa A. Mutter filed a Petition for Warrant for Offender under Supervision, requesting a warrant be issued to bring Defendant before the Court on charges that he violated conditions of his supervised release. (R. 70). Defendant was arrested, and on April 24, 2017, he was brought before the undersigned for initial appearance on supervised release violations.
As discussed above, at the Final Revocation Hearing, defense counsel informed the Court that Defendant was prepared to admit to the violations contained in the April 26, 2017, Amended Violation Report. Defendant confirmed this was his intention. Prior to taking his plea, the undersigned explained to Defendant the statutory maximum term of incarceration and supervised release as well as the applicable Guidelines range.
Accordingly, after being placed under oath, Defendant admitted and entered a guilty plea to the violations of his supervised release as set out in the April 26, 2017, Amended Supervised Release Violation Report of U.S. Probation Officer Specialist Melissa A. Mutter. Specifically, Defendant
Defendant provided multiple urine specimens on various dates which tested positive for controlled substances as follows:
In addition to these positive drug screens, Defendant was revived by paramedics using naloxone after overdosing on heroin on March 25, 2017.
Defendant admitted to missing three appointments scheduled with treatment providers on March 16, March 23, and April 17, 2017, in violation of this condition.
Defendant admitted to using controlled substances (Violation No. 1) which, under Sixth Circuit law, is equivalent to possession of those substances and therefore a violation of federal law, 21 U.S.C. § 844(a).
The undersigned is satisfied from the dialogue with Defendant that he understands the nature of the violations as charged, he has had ample opportunity to consult with counsel, and that he enters his guilty plea to the charges knowingly and voluntarily. Therefore, based on Defendant's plea of guilty to the violations, the undersigned finds and will recommend that the District Court find that Defendant has violated conditions of his supervised release as charged.
Defendant having admitted to violating his supervised release, the question of sentencing is presented. The Court is mindful of the need to impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553(a). See id. § 3583(e). In her April 26, 2017, Amended Violation Report, USPO Specialist Mutter recommends a sentence of imprisonment of 6 months, with a 2-year term of supervised release to follow, with the special condition that immediately upon release, Defendant be placed in a residential treatment program to be determined by the Probation Office. Defendant, his counsel, and the Assistant United States Attorney agreed with this recommendation.
After review of the factual circumstances of the violations and the Defendant's case history, the undersigned finds that the agreed-upon recommended sentence is sufficient, but not greater than necessary to comply with the statutory purposes. Specifically, the agreed-upon 6-month term of incarceration falls within the Guidelines range and is sufficient to afford adequate deterrence to Defendant's criminal conduct and to impress upon Defendant the seriousness of abiding by the conditions of his supervised release. Moreover, the recommendation will provide Defendant with the opportunity to participate in a residential substance abuse treatment program immediately upon release to his new 2-year term of supervision. Defendant is in need of residential treatment to facilitate his successful transition back into society and it appears he has not participated in such a residential treatment program to date. To be successful on supervision, Defendant will need to actively participate in treatment and take advantage of the opportunities and support provided him by the U.S. Probation Office. Further violations, particularly those involving controlled substance abuse, will be a great disappointment and will not be looked upon favorably by the Court.
2. Defendant's supervised release be
3. Defendant be
4. The District Court recommend to the Bureau of Prisons that Defendant be placed at the federal correctional facility located in Ashland, Kentucky, for service of the sentence imposed.