United States District Court, W.D. Wisconsin
William M. Conley U.S.District Judge .
hearing on the probation office's petition for judicial
review of John I. Smith's supervised release was held on
July 20, 2017, before U.S. District Judge William M. Conley.
Assistant U.S. Attorney Rita Rumbelow appeared for the
government. The defendant was present in person and by
defense counsel Shelley Fite. Also present was U.S. Probation
Officer Jelani Brown.
the record, I make the following findings of fact. The
defendant was sentenced by the Honorable John C. Shabaz in
the Western District of Wisconsin on December 9, 2003,
following his conviction for possession with intent to
distribute a mixture and substance containing heroin in
violation of 21 U.S.C. § 841(a)(1), a Class C felony.
The defendant was committed to the custody of the Bureau of
Prisons to serve a 188-month term of imprisonment, with a
36-month term of supervised release to follow. The defendant
began his term of supervised release on September8, 2016.
alleged that the defendant violated the mandatory
condition requiring that he not commit another federal,
state, or local crime. Specifically, on January 30, 2017, he
was issued a citation by the Madison, Wisconsin, Police
Department for possession of heroin, having been found
incapacitated near his girlfriend's apartment. Responding
paramedics determined that he had overdosed on heroin, for
which he was subsequently charged for possession in Dane
County Circuit Court Case No. 17CF500. On March 6, 2017, the
Dane County District Attorney's Office also charged the
defendant with manufacture/delivery of Schedule I, II
narcotics and manufacture/deliver heroin (less than 3 grams)
in Dane County Circuit Court Case No. 17CF573.
with (though not depending upon the accuracy of those state
charges), the Probation Office alleges that the defendant
violated Special Condition No. 3, requiring him to abstain
from the use of illegal drugs. Specifically, on March 21,
April 20, May 10 and May 19, 2017, as well as June 2, 2017,
the defendant tested positive for heroin or opiate use. He
further admitted to using heroin on March 19 and April 20,
April 17, 2017, the probation office submitted a Report on
Offender Under Supervision requesting a telephone conference
with the Court to discuss the defendant's response to his
pending state charges and his continued drug use. That
telephone conference was facilitated on May 10, 2017, through
the probation office. During the conference, I explained to
the defendant that his noncompliance was of serious concern
and that his continued use of heroin would likely lead to a
return to court for judicial review, unless the Probation
Office felt his ongoing efforts to comply made him an
unworthy candidate for imprisonment.
the defendant submitted two additional urine specimens that
tested positive for opiates following that telephone
conference, although he denied use of opiates on those two
defendant has prior convictions for controlled substance
offenses in Dane County, Wisconsin, Circuit Court; and Cook
County, Illinois, Circuit Court. Consistent with the Seventh
Circuit Court of Appeals decision in United States v.
Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001),
any subsequent illegal possession itself could constitute a
felony offense. If the Court finds that the defendant's
prior convictions constitute a felony, his alleged conduct
would fall into the category of a Grade B violation, as
defined at § 7B 1.1 (a)(3)(B) of the Guidelines Manual.
If the court were to determine that he possessed and used a
controlled substance as alleged above, revocation is
mandatory under 18 U.S.C § 3583(g)(1).
while the defendant's conduct warrants revocation, Smith
has been in outpatient treatment since April 17, 2017, only
missing 2 days attendance and has been in general compliance
with all of the counseling requirements. He is also reported
to be following clinic and state guidelines, and reported to
be "progressing as expected." As a result, his
counselor believes that "[i]t would be illogical to go
backwards at this point, incarcerating the patient and hoping
he can have a successful transition at a later date when he
is progressing right now." In talking candidly to the
counselor today, however, it was clear that even he is
concerned about Smith's continued use of heroin, now more
than 2 Vi months into his methadone treatment. As a
result, the Probation Office recommended that Smith be
enrolled in a more intensive in-patient treatment program.
the defendant's alleged violations are serious, I am
persuaded that postponing the judicial review for 45 days is
warranted. This will provide the defendant with an
opportunity to successfully complete the recommended
residential substance abuse treatment program.
ORDERED that the judicial review be postponed for 45 days.
The defendant shall remain on supervised release and comply
with the conditions of his supervision as previously ordered,
to include a placement at a residential treatment center
where he can obtain the substance abuse treatment. Any
sentence to imprisonment the defendant may receive will
largely be determined by his conduct during the next 45 days.
Upon the first available vacancy, the defendant shall,
therefore, be placed in the 27-day substance abuse treatment
program at Attic Correctional Services in Madison, Wisconsin.
He is to abide by all program rules. The probation office is
to notify the court if the defendant is removed from the