JOHN JOHNSTON, Magistrate Judge.
Mr. Saucedo was accused of violating his conditions of supervised release by associating with a felon, failing to follow the instructions of his probation officer, consuming marijuana, failing to answer truthfully all inquiries by his probation officer, and failing to notify his probation officer prior to a change in address. Mr. Saucedo's supervised release should be revoked. He should be sentenced to one month of custody, with 35 supervised release to follow. A condition should be added requiring him to spend 90 days in a residential reentry center if possible.
In January 2001, Mr. Saucedo pleaded guilty to Conspiracy to Distribute Controlled Substance(Count I) and Money Laundering (Count II). (Doc. 31.) Senior United States District Court Judge Jack D. Shanstrom sentenced Mr. Saucedo to life in custody on Count I and 60 months of custody on Count II, to run concurrently. Judge Shanstrom sentenced Mr. Saucedo to 60 months of supervised release for Count I and 36 months of supervised release for Count II, to run concurrently. (Doc. 35.) On September 26, 2002, Judge Shanstrom reduced Mr. Saucedo's sentence to 200 months of custody on Count I and 60 months on Count II, to run concurrently. All other terms and conditions of the previous judgment remained unchanged. (Doc. 61.)
Mr. Saucedo began his term of supervised release on August 20, 2015. (Doc. 64.) On September 15, 2015, the United States Probation Office filed a Report on Offender under Supervision, alleging Mr. Saucedo had violated the conditions of his supervised release in four respects but suggesting no further action be taken at that time. (Doc. 63.)
On October 1, 2015, the United States Probation Office filed a petition asking the Court to revoke Mr. Saucedo's supervised release. (Doc. 64.) Based on the petition, United States District Court Judge Brian Morris issued a warrant for Mr. Saucedo's arrest. (Doc. 65.) The Probation Office accused Mr. Saucedo of violating Standard Condition 9 of his supervised release by associating with a person convicted of a felony. The Probation Office accused Mr. Saucedo of violating Standard Condition 3 of his supervised release by failing to follow the instructions of his probation officer. The petition alleged Mr. Saucedo violated Standard Condition 7 of his supervised release by consuming alcohol. The petition also alleged Mr. Saucedo violated Standard Condition 3 by failing to answer truthfully all inquiries of his probation officer. The Probation Office accused Mr. Saucedo of violating Standard Condition 6 of his supervised release by failing to notify his probation officer prior to a change in residence. (Doc. 64.)
Mr. Saucedo appeared before the undersigned on October 13, 2015, in Great Falls, Montana, for an initial appearance. Federal Defender Anthony Gallagher accompanied him at the initial appearance. Assistant United States Attorney Bryan Dake represented the United States.
Mr. Saucedo said he had read the petition and understood the allegations. Mr. Saucedo waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.
On October 13, 2015, Mr. Saucedo appeared with Mr. Gallagher before the undersigned for a revocation hearing. Mr. Dake appeared on behalf of the United States. Mr. Saucedo admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of Mr. Saucedo's supervised release.
Mr. Saucedo's violation grade is Grade C, his criminal history category is IV, and his underlying offenses are Class A and C felonies. He could be incarcerated for up to 60 months on Count I and 24 months on Count II. He could be ordered to remain on supervised release for 60 months on Count I and 36 months on Count II, less any custody time imposed. The United States Sentencing Guidelines call for six to 12 months in custody.
The parties jointly recommended a sentence of one month of custody, with 35 months of supervised release to follow. The parties argued this is an appropriate disposition as it emphasizes the seriousness of complying with the conditions of supervised release but does unduly punish Mr. Saucedo. The parties recommended the Court require Mr. Saucedo to spend 90 days in a residential reentry center. Mr. Saucedo addressed the Court and said he had not realized the seriousness of supervised release.
Mr. Saucedo's supervised release should be revoked because he admitted violating its conditions. Pursuant to the parties' joint recommendation, Mr. Saucedo should be sentenced to one month of custody, with 35 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. If possible, Mr. Saucedo should spend 90 days in a residential reentry center.
Mr. Saucedo 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. Saucedo's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Saucedo'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.
[✓] admitted guilt to violation of condition(s)
[ ] was found in violation of condition(s) ________________ after denial of guilt.
The defendant is adjudicated guilty of these violations:
The defendant is sentenced as provided in pages 2 through
[ ] The defendant has not violated condition(s) ________ and is discharged as to such violation(s) condition.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total total term of:
One month.
[ ] The court makes the following recommendations to the Bureau of Prisons:
[✓] The defendant is remanded to the custody of the United States Marshal.
[ ] The defendant shall surrender to the United States Marshal for this district:
[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
I have executed this judgment as follows:
Upon release from imprisonment, the defendant shall be on supervised release for a term of: 35 months.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall 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 the defendant poses a low risk of future substance abuse. (Check, if applicable.)
[✓] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, ifG
[✓] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)G
[ ] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is be a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment. The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
1. The defendant shall participate in substance abuse testing, to include not more than 104 urinalysis tests and not more than 104 breathalyzer tests annually during the period of supervision. The defendant is to pay all or part of the costs of testing as determined by the United States Probation Officer.
2. The defendant shall participate in and 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 determined by the United States Probation Officer.
3. The defendant shall abstain from the consumption of alcohol and shall not enter establishments where alcohol is the primary item of sale. This condition supersedes standard condition number 7 with respect to alcohol consumption only.
4. The defendant shall refrain from all contact with known gang members.
5. The defendant shall submit his person, residence, place of employment, vehicles, and papers to a search by any United States Probation Officer based on reasonable suspicion of contraband or evidence in violation of a condition of supervised release. Failure to submit to a search may be grounds for revocation. The defendant shall warn any other residents that the premises may be subject to search pursuant to this condition.
6. The defendant shall disclose all financial information requested by the probation officer.
7. If defendant is eligible and space is available, the defendant shall reside in a Residential Reentry Center (RRC) under contract to the United States Bureau of Prisons, in the pre-release component, for a period of 90 days. The defendant shall abide by all rules and regulations of the center and successfully complete any programming as deemed appropriate by the United States Probation Office.
The defendant is hereby sentenced to probation for a term of:
The defendant shall not commit another federal, state, or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of placement on probation 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 the defendant poses a low risk of future substance abuse. (Check, if applicable.)
[] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
[ ] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is be a condition of probation that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The defendant must pay the following total criminal monetary penalties under the schedule of payments set forth on Sheet 6.
[ ][ ] The determination of restitution is deferred until _____. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.
[ ] The defendant shall make restitution (including community restitution) to the following payees in the amount listed below.
[ ] Restitution amount ordered pursuant to plea agreement $ __________________
[ ] The defendant must pay interest on restitution or a fine more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
[ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that:
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as follows:
Unless the court has expressly ordered otherwise in the special instruction above, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
[ ] Joint and Several
[ ] The defendant shall pay the cost of prosecution.
[ ] The defendant shall pay the following court cost(s):
[ ] The defendant shall forfeit the defendant's interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.
