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United States v. Newman

United States District Court, M.D. Alabama, Northern Division

November 26, 2018

UNITED STATES OF AMERICA
v.
JOHNNY NEWMAN

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Newman 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 release.

         Since 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.

         Nevertheless, 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.

         On 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.

         Unfortunately, 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.

         This 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.

         Newman reports that he uses marijuana to alleviate chronic knee pain, which is aggravated by his work at the Cash Saver grocery store.[1] 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 insurance.

         The 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.

         II. LEGAL FRAMEWORK

         As a 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.[2] 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).[3]

         Even if 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.[4]

         If, 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.

         III. ANALYSIS

         Because 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 exception” ...


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