REPORT & RECOMMENDATION
JACQUELINE M. RATEAU, Magistrate Judge.
This matter was referred to the Magistrate Judge to address the Government's Petition for Warrant filed on October 25, 2017, by which the Government requests that the Court revoke Defendant Mendoza's Supervised Release. DOC 58. The Petition alleges that Defendant violated two conditions of his Supervised Release: he failed to report to his Probation Officer as instructed; and he failed to submit a urine sample for testing as directed. Id.
An evidentiary hearing was conducted on February 6, 2018. One witness was presented by the Government, United States Probation Officer Chris Woodiel. Defendant was present and represented by counsel. He testified in his own defense. Four exhibits were admitted at the hearing.1
I. Facts
Defendant was sentenced on November 30, 2016, for possession with intent to distribute marijuana. EX 1. He was ordered to serve 18 months in prison to be followed by 36 months of supervised release. Id. Defendant's supervision began when he was released from prison on May 11, 2017, and would have expired on May 10, 2020. DOC 58.
Probation Officer Woodiel testified that he was Defendant's assigned probation officer. On May 17, 2017, he met with Defendant and reviewed the supervised release conditions with him. Standard Condition #2 states: "After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when you must report to the probation officer, and you must report to the probation officer as instructed." EX 1. Special Condition #1 states in relevant part: "You shall participate as instructed by the probation officer in a program of substance abuse treatment which may include testing for substance abuse." Id. After review, both Officer Woodiel and Defendant signed and dated the conditions. Id. Defendant was provided a copy of the conditions.
According to Officer Woodiel, after their initial meeting on May 17, 2017, he next met with Defendant on June 19, 2017. At that meeting, Defendant signed a document entitled "Implementation of Terms of Supervision District of Arizona." EX 2. Defendant signed the document and acknowledged that he was directed to speak or report in person to Officer Woodiel on August 17, 2017. Id. Defendant failed to show for his appointment. The following day, Officer Woodiel called the Defendant who explained that he did not know of the appointment.
On August 23, 2017, Officer Woodiel made an unannounced visit to Defendant's residence. Defendant's sister confirmed that Defendant lived at the address but was not at home at the moment. On August 31, 2017, Officer Woodiel sent Defendant a certified letter directing him to report in person to the Phoenix Probation Office on September 19, 2017, at 11 a.m. EX 3. The letter warned that if he did not make the appointment, the Court could be notified and a warrant issued for his arrest. Id. Receipt of the letter by Defendant was confirmed on September 6, 2017. EX 4. Defendant failed to show for his appointment but did call earlier in the day to state that he had transportation issues. Officer Woodiel stressed to Defendant that he was not excused from the appointment as he had weeks to make transportation arrangements.
Another appointment was scheduled for September 21, 2017. Although very late for his appointment, Defendant did show up. According to Defendant, he did show up for his September 19th appointment and was only 35 minutes late for his appointment on September 21. However, on cross-examination, Defendant admitted that he could not remember what he and his Probation Officer spoke about as "everything was a blur" to him. Nor could Defendant explain why, if he had showed up for his appointment on September 19, he was again directed to meet with his probation officer two days later.
On September 25, 2017, Defendant scheduled an appointment for October 3, 2017. The purpose of the appointment was for Defendant to submit a urine sample. It's not clear if Defendant called or appeared but he was unable to submit a sample because of "kidney stones." Officer Woodiel asked the Defendant to submit proof from his doctor of his medical condition. Defendant never did that. Nor did he attend his next two scheduled appointments (October 17 and 23) with Officer Woodiel.
II. Discussion
According to 18 U.S.C. § 3583(e)(3), a district court may revoke a defendant's supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of his supervised release.
With respect to Standard Condition #2, Allegation A of the Petition charges that "[O]n or about August 17, September 19, and October 17 and 23, 2017, Mendoza failed to report for scheduled office appointments with the probation officer." Id. Based on the testimony of the Probation Officer, which was not sufficiently refuted by Defendant, the Court finds by a preponderance of the evidence that Defendant violated Standard Condition #2 as charged in allegation A of the Petition.
With respect to Special Condition #1, Allegation B of the Petition charges that "[O]n October 3, 2017, Mendoza failed to submit a urine sample for testing as directed by the probation officer." Id. Based on the testimony of the Probation Officer at the hearing which Defendant did not dispute, the Court finds by a preponderance of the evidence that Defendant violated Special Condition #1 as charged in allegation B of the Petition.
III. Recommendation
Having considered the pleadings, testimony, and the arguments of counsel, the Magistrate Judge recommends that the District Court find that Defendant violated both Standard Condition #2 and Special Condition #1.
Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections with the District Court within fourteen (14) days of being served with a copy of this Report and Recommendation. If the objections are not timely filed they may be deemed waived. If any objections are filed, this action should be designated with the following case number CR 16-315-TUC-JGZ.
