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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO.: 4:02cr11-SPM

JOSEPH WAYNE OLIVER

_____________________________/

FINDINGS ON LIMITED REMAND

This case comes before the Court on limited remand from the United

States Court of Appeals for the Eleventh Circuit to state the factual findings and

reasons relied upon for the revocation of Defendant’s supervised release. 

Defendant’s hearing took place on April 13, 2009. Three violations were alleged.

The first concerned Defendant’s positive urine test for marijuana on June 12,

2008. The second concerned Defendant’s failure to participate in a drug

treatment program. The third concerned Defendant’s failure to participate in a

mental health treatment program. The second and third violations were based

on Defendant’s failure to attend a scheduled appointment with Dr. Nancy

Wonder on December 11, 2008, and failure to satisfactorily participate in a

treatment program from Defendant’s date of referral on June 12, 2008, to the

date of the violation petition on February 12, 2009. 
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The Court heard testimony from probation officer Mike Sobeski, from

Defendant, and from Phyllis Young-Oliver, who lives with Defendant. It was

undisputed that Defendant had taken a prescription medication, Marinol, on or

about June 12, 2008, which resulted in the positive urine test for marijuana. It

was also undisputed that Defendant did not attend the scheduled appointment

with Dr. Wonder on December 11, 2008, and that Defendant had not participated

in regular counseling sessions either before or since. Defendant argued,

however, that his violations were not willful because he did not know that Marinol

was a controlled substance and that the problems he had in attending

counseling sessions stemmed from (1) a storm that had made the road leading

from his home impassable on December 11, 2008, (2) difficulty in scheduling

appointments with Dr. Wonder, and (3) problems with obtaining transportation to

attend counseling sessions.

Defendant’s testimony was not credible. Regarding the Marinol, when Mr.

Sobeski arrived at Defendant’s house on June 12, 2008, Defendant stated that

he could not take a drug test because he had just taken some Marinol tablets

that he received from Ms. Oliver. Ms. Oliver is a former nurse. The Court finds

that Defendant knew that Marinol was prescription drug and that taking the drug

would result in a violation of the conditions of his supervision.

Regarding the failure to attend counseling sessions, Defendant’s

testimony about the condition of the road was not entirely credible. Mr. Sobeski

CASE NO.: 4:02cr11-SPM
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received information from the electric company that the road in question was

passable on the morning of December 11, 2008. Moreover, Defendant’s failure

to attend counseling sessions before and after December 11, 2008, demonstrate

that he has not made a good faith effort to participate in a program of mental

health and drug treatment. 

This is not a case where Defendant has missed appointments on

occasion due to difficulties beyond his control. Defendant has a long history of

mental health and substance abuse problems, for which he is in need of

treatment. Defendant, however, has continued to drink alcohol to excess while

on supervised release. Defendant willfully used Marinol, a controlled substance. 

He has made virtually no effort to participate in mental health and drug

treatment. Defendant has shown that he simply is not willing to comply with

conditions of supervised release. 

A sentence of eight months imprisonment, with no supervised release to

follow, is sufficient, but not greater than necessary, to meet the purposes of 18

U.S.C. § 3553(a). In particular, the sentence is needed to promote respect for

the law, provide just punishment, and afford adequate deterrence to others.

DONE AND ORDERED this 2nd day of October, 2009.

s/ Stephan P. Mickle

Stephan P. Mickle

Chief United States District Judge

CASE NO.: 4:02cr11-SPM