FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
The United States accused Mr. Aims Back of violating his conditions of supervised release by (1) committing another crime, and (2) consuming alcohol. Mr. Aims Back admitted to the second allegation but exercised his Fifth Amendment right as to the first allegation. His supervised release should be revoked. He should be sentenced to custody until May 22, 2017, with no supervised release to follow.
II. Status
United States District Judge Sam Haddon sentenced Mr. Aims Back to thirty-six months in custody, with thirty-six months of supervised release to follow, on March 27, 2012, after a he pleaded guilty to Assault Resulting in Serious Bodily Injury. (Doc. 57.) He began his current term of supervised release on May 23, 2014;
Petition
The United States Probation Office filed a Petition for Warrant for Offender Under Supervision on February 7, 2017, alleging that Mr. Aims Back violated the terms of his supervised release by (1) committing another crime, and (2) consuming alcohol. (Doc. 48.) United States District Judge Brian Morris issued a warrant for his arrest based on the allegations in the Petition. (Doc. 49.)
Initial appearance
Mr. Aims Back appeared before the undersigned on February 9, 2017, in Great Falls, Montana. Federal Defender Anthony Gallagher accompanied him. Assistant United States Attorney Jessica Betley represented the United States.
Mr. Aims Back said he had read the petition and understood the allegations. He waived the preliminary hearing, and the parties consented to proceed immediately with the revocation hearing before the undersigned.
Revocation hearing
Mr. Aims Back admitted to the second allegation but exercised his Fifth Amendment right as to the first allegation. The violation is serious and warrant revocation of his supervised release.
Mr. Aims Back'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 and could be ordered to remain on supervised release for thirty-six months, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Gallagher recommended a sentence of three months or less, with no supervised release to follow. Mr. Aims Back exercised his right of allocution and stated that he has been working to pay back his restitution. Ms. Betley recommended a sentence at the low-end of the guideline, with no supervised release to follow.
III. Analysis
Mr. Aims Back's supervised release should be revoked because he admitted violating its conditions. He should be sentenced to custody until May 22, 2017, with no supervised release to follow. This sentence would be sufficient given the seriousness of the violations but not greater than necessary.
IV. Conclusion
Mr. Aims Back 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 his objection, if it is filed within the allotted time, before making a final determination on whether to revoke his supervised release and what, if any, sanction to impose.
The undersigned FINDS:
Michael Ray Aims Back violated the conditions of his supervised release by consuming alcohol.
The undersigned RECOMMENDS:
The District Court should enter the attached Judgment, revoking Mr. Aims Back's supervised release and committing him to the custody of the United States Bureau of Prisons for until May 22, 2017, with no supervised release to follow.
NOTICE OF RIGHT TO OBJECT TO FINDINGS AND RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
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.
UNITED STATES DISTRICT COURT
District of Montana
UNITED STATES OF AMERICA Judgment in a Criminal Case
v. (For Revocation of Probation or Supervised Release)
MICHAEL RAY AIMS BACK Case No. CR 11-91-GF-BMM-01
USM No. 11471-046
Anthony R. Gallagher
____________________________________________
Defendant's Attorney
THE DEFENDANT:
[✓] admitted guilt to violation of condition(s) as listed below of the term of supervision.
[ ] was found in violation of condition(s) ________________ after denial of guilt.
The defendant is adjudicated guilty of these violations:
Violation Number Nature of Violation Violation Ended
1 (Preamble) New crime 01/29/2017
2 (Special condition 4) Use of alcohol 01/29/2017
The defendant is sentenced as provided in pages 2 through 3 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
[✓] The Court did not adjudicate violation 1 and the 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.
Last Four Digits of Defendant's Soc. Sec. No.: 4022 __________________________________________
Date of Imposition of Judgment
Defendant's Year of Birth: 1983
City and State of Defendant's Residence: ___________________________________________
Browning, MT Signature of Judge
Brian Morris United States District Judge
___________________________________________
Name and Title of Judge
___________________________________________
Date
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned until: May 22, 2017
[ ] 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:
[] at ___________________ [] a.m. [] p.m. on _______________________.
[] as notified by the United States Marshal.
[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
[] before 2 p.m. on _________________________.
[] as notified by the United States Marshal.
[] as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on ________________________________ to ________________ at ___________________ with a certified copy of this judgment.
___________________________________
UNITED STATES MARSHAL
By ___________________________________
DEPUTY UNITED STATES MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of: none
MANDATORY CONDITIONS
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 cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
5. [] You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
6. [] 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.
