United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE.
court adjudged defendant Johnny Newman guilty of two
violations charged in an amended petition for revocation of
supervised release: on April 27 and May 9, 2018, he tested
positive for marijuana and admitted to using the drug. He now
asks the court to sentence him as follows based on these two
violations as well as a third positive marijuana test on June
14, 2018, reported by the U.S. Probation Office: imprisonment
of six days, to be served in three two-day spans when he is
not working. He also proposes that, for any future positive
drug test, the court sentence him based on the “swift
and certain” model of punishment pioneered by
Hawaii's Opportunity Probation with Enforcement (HOPE)
program. For the reasons that follow, the court will revoke
Newman's supervised release and sentence him as he
proposes for his three past violations; the court will also
accept his proposed HOPE model for future positive marijuana
tests, albeit as modified in this opinion.
is 52 years old. In 2005, he pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). This court sentenced him to 151 months of
imprisonment, to be followed by five years of supervised
beginning supervised release in July 2016, Newman has tested
positive for marijuana use at least a dozen times. In
December 2016 and March 2017, he admitted to using marijuana.
He told the Probation Office that he uses the drug as a form
of pain management for an employment-related knee injury.
See Noncompliance Summary (doc. no. 59) at 2.
Following a hearing, the court ordered continued supervised
release and a full substance-abuse assessment. See
April 2017 Order (doc. no. 65). He began receiving outpatient
substance-abuse treatment at the Chemical Addictions Program
(CAP) in Montgomery, Alabama.
Newman has continued to use marijuana. In July 2017, after he
submitted his sixth positive drug screen for marijuana, the
Probation Office filed a petition for revocation of
supervised release. See July 2017 Revocation
Petition (doc. no. 68). Pending resolution of the revocation
petition, the court modified Newman's conditions of
supervised release. Among other modifications, the court
required that he live in a residential re-entry center under
contract with the Federal Bureau of Prisons (BOP) for a term
of 180 days, and continue attending outpatient treatment at
CAP. See August 2017 Order (doc. no. 79) at 1-2.
September 8, 2017, the residential re-entry center dismissed
Newman for using synthetic marijuana. The Probation Office
subsequently amended its revocation petition to include this
incident. On October 13, 2017, after a hearing, and by
agreement of all involved, the court dismissed the amended
revocation petition, and modified the conditions of
supervised release to require that Newman (1) continue
attending outpatient treatment at CAP; (2) receive a medical
assessment to diagnose his reported knee problem, and obtain
treatment if necessary; (3) continue to maintain employment;
(4) receive mental-health counseling at least twice a month;
and (5) participate in an alcohol-monitoring program and
abstain from using alcohol. See October 2017 Order
(doc. no. 100) at 1-2. The court further ordered, based on
the agreement of all involved, that Newman need not reside at
the residential re-entry center.
Newman's marijuana use persisted. In March 2018, he pled
guilty to 11 violations, including testing positive for
marijuana on six different occasions between September and
December 2017. See Judgment (doc. no. 117). The
court modified his conditions of supervised release by
sentencing him to 15 days in jail, to be served on weekends.
opinion arises out of another amended revocation petition
filed on May 22, 2018, which alleged three violations. The
first two are for using marijuana--based on his positive
tests for the drug on April 27 and May 9, 2018--and the third
is for failing to report for drug screening on May 17, 2018.
This court adjudged Newman guilty of the first two violations
and the government dismissed the third. See June
Order (doc. no. 133). According to a status update provided
by the Probation Office, he subsequently tested positive for
marijuana on June 14, 2018, and admitted to using the drug.
See June Status Report (doc. no. 136) at 1.
reports that he uses marijuana to alleviate chronic knee
pain, which is aggravated by his work at the Cash Saver
grocery store. Although he has been diagnosed with
“osteoarthritis of knee, ” Patient Care Summary
(doc. no. 148-1) at 1, he has faced bureaucratic and
financial obstacles to obtaining medical treatment, including
orthopedic care. According to Newman, his limited hours at
Cash Saver do not qualify him for employer-sponsored health
most recent development in Newman's case is encouraging.
On October 3, 2018, his probation officer reported that,
since being placed on an alcohol-monitoring device in October
2017, Newman had undergone almost 1, 400 alcohol tests
without having any “issues with [him] consuming
alcohol.” October Status Report, (doc. no. 152) at 1.
The probation officer recommended that the alcohol-monitoring
device be removed, and the court had the device removed on
October 26, 2018. See Order Suspending Special
Condition (doc. no. 153) at 2.
general rule under 18 U.S.C. § 3583(g)(4), if a
defendant “tests positive for illegal controlled
substances more than 3 times over the course of 1 year,
” the court must revoke his supervised release and
sentence him to a term of imprisonment. But this rule has
an exception. Specifically, when a defendant fails a drug
test, the “court shall consider whether the
availability of appropriate substance abuse treatment
programs, or an individual's current or past
participation in such programs, warrants an exception”
to mandatory revocation and imprisonment under §
3583(g). 18 U.S.C. § 3583(d).
the exception to mandatory revocation is warranted,
the court still has the authority to exercise its discretion
to revoke supervised release and impose a term of
imprisonment based on the defendant's violations. In
fact, after considering several of the factors set forth in
18 U.S.C. § 3553(a), the court may terminate or extend
supervised release, modify the conditions, or revoke the term
and imprison the defendant. See 18 U.S.C. §
3583(e). The § 3553(a) factors the court must consider
are (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; the need for
the sentence imposed (2) to afford adequate deterrence to
criminal conduct, (3) to protect the public from the
defendant, and (4) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment; (5) the kinds of sentences and the
sentencing range established by the Guidelines; (6) any
pertinent policy statements issued by the Sentencing
Commission; (7) the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct; and (8) the need for
restitution. See id.
upon considering these factors, the court revokes supervised
release and imposes a term of imprisonment, it may also
require the imprisonment to be followed by a second term of
supervised release. See 18 U.S.C. § 3583(h).
There are no minimum lengths for any new terms of
imprisonment and supervised release. See 18 U.S.C.
§ 3583(e)(3) and (h). For Newman, the combined length of
any new terms of imprisonment and supervised release cannot
exceed five years. See id.
Newman has tested positive for marijuana more than three
times over the course of the past year, he is potentially
subject to mandatory revocation and imprisonment under §
3583(g). Nevertheless, the court finds that both the
“availability of appropriate substance abuse treatment
programs”--namely CAP--and Newman's “current
[and] past participation in such programs, warrant an