JOHN JOHNSTON, Magistrate Judge.
The United States accused Mr. Mad Plume of violating his conditions of supervised release by being removed from his required sixty-day impatient substance abuse treatment program after he exhibited defiant and resistant behavior on February 21, 2018. Mr. Mad Plume admitted to the violations. His supervised release should be revoked, and he should be incarcerated for nine months, with twelve months of supervised release to follow.
On September 15, 2016, United States District Judge Brian Morris sentenced Mr. Mad Plume to six months in custody, with thirty-six months of supervised release to follow, after he pleaded guilty to Assault Resulting in Serious Bodily Injury. (Doc. 59). Mr. Mad Plume began his term of supervised release on November 22, 2016.
On January 31, 2017, the United States Probation Office filed a petition asking the Court to revoke Mr. Mad Plum's supervised release, alleging Mr. Mad Plume had violated his conditions of supervised release by absconding from the Great Falls Transition Center. (Doc. 64). Mr. Mad Plume's supervised release was revoked and he was sentenced to time served, and he was further ordered to attend treatment at Crystal Creek Lodge Treatment Center in Browning, Montana. Mr. Mad Plume began his current term of supervised release on June 20, 2017.
On September 18, 2017, the United States Probation Office filed a petition asking the Court to revoke Mr. Mad Plume's supervised release for his consumption of alcohol, failing to notify the probation office of law enforcement contact, failure to attend chemical dependency treatment, and committing a new crime. (Doc. 79). Mr. Mad Plume was sentenced to custody until February 5, 2018, at which time he was to complete sixty-day inpatient treatment at Connections Corrections, with twenty-five months of supervised release to follow.
On February 21, 2018, the United States Probation Office filed a petition asking the Court to revoke Mr. Mad Plume's supervised release. (Doc. 90). The petition alleges that on February 21, 2018, Supervising United States Probation Officer Kevin Heffernan received a report from the Licensed Addictions Counselor at Connections Corrections, which stated that Mr. Mad Plume had exhibited defiant and resistant behavior, had sworn at other clients and had been aggressive toward them, and after being placed in a holding cell for his safety and the safety of others, he began to act out by destroying his pillow, throwing toilet paper everywhere, and staying up all night screaming. (Id.) Based on the petition, Judge Morris issued a warrant for Mr. Mad Plume's arrest. (Doc. 91).
On February 27, 2018, Mr. Mad Plume appeared before the undersigned in Great Falls, Montana, for an initial appearance. Federal Defender Bill Levine accompanied him at the initial appearance. Assistant United States Attorney Jared Cobell represented the United States. Mr. Mad Plume said he had read the petition and understood the allegations. He waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.
At the revocation hearing, Mr. Mad Plume admitted that he violated the condition of his supervised release. The violation is serious and warrants revocation of his supervised release.
Mr. Mad Plume's violation grade is Grade C, his criminal history category is I, and his underlying offense is a Class C felony. He could be incarcerated for up to twenty-four months. He could be ordered to remain on supervised release for twenty-five months, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Levine requested a low guideline sentence, acknowledging that this was his third revocation. Mr. Mad Plume addressed the Court and stated he recognized he needed treatment and was sorry he did not complete it. Mr. Cobell recommended a guideline sentence followed by supervised release, arguing that his revocations have been for extremely dangerous activities.
Mr. Mad Plume's supervised release should be revoked because he admitted violating its conditions. He should be sentenced to nine months in custody, with twelve months of supervised release to follow. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
Mr. Mad Plume was advised that the above sentence would be recommended to Judge Morris. The Court reminded him of his right to object to these Findings and Recommendations within 14 days of their issuance. The undersigned explained that Judge Morris would consider Mr. Mad Plume's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Mad Plume's supervised release and what, if any, sanction to impose.
The Court
The Court
The parties may serve and file written objections to the Findings and Recommendations within 14 days of their entry, as indicated on the Notice of Electronic Filing. 28 U.S.C. § 636(b)(1). A district judge will make a de novo determination regarding any portion of the Findings and Recommendations to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district judge, and may waive the right to appear and allocute before a district judge.
Upon release from imprisonment, you will be on supervised release for a term of: twelve (12) months.
1. You must not commit another federal, state or local crime.
2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
[] The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future substance abuse. (check if applicable)
4. [] You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of restitution. (check if applicable)
5. [] You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6. [] You must comply with the requirements of the Sex Offender Registration and Notification Act (U.S.C. §, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
7. [] You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.
2. 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.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions, available at:
1. The defendant shall abstain from the consumption of alcohol and shall not enter establishments where alcohol is the primary item of sale.
2. The defendant shall participate in substance abuse testing to include not more than 104 urinalysis tests, not more than 104 breathalyzer tests, and not more than 36 sweat patch applications annually during the period of supervision. The defendant shall pay all or part of the costs of testing as directed by the United States Probation Office.
3. The defendant shall not possess, ingest or inhale any toxic substances such as, but not limited to, synthetic marijuana and/or synthetic stimulants that are not manufactured for human consumption, for the purpose of altering their mental or physical state.
4. The defendant shall not purchase, possess, use, distribute or administer marijuana, or obtain or possess a medical marijuana card or prescription.
5. The defendant shall submit his person, residence, place of employment, vehicles, and papers, to a search, with or without a warrant by any probation officer based on reasonable suspicion of contraband or evidence in violation of a condition of release. Failure to submit to search may be grounds for revocation. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The defendant shall allow seizure of suspected contraband for further examination.
6. The defendant shall make a good faith effort to obtain a G.E.D. or high school diploma within the first year of supervision.
7. The defendant shall participate in and successfully complete a program of substance abuse treatment as approved by the United States Probation Office, until the defendant is released from the program by the probation officer. The defendant is to pay part or all of the cost of this treatment, as directed by the United States Probation Office.
8. The defendant shall participate in a program for mental health treatment as deemed necessary by the United States Probation Officer, until such time as the defendant is released from the program by the probation officer. The defendant is to pay part or all of the cost of this treatment, as directed by the United States Probation Office.
9. The defendant shall have no contact with victim(s) in the instant offense.
