JOHN JOHNSTON, Magistrate Judge.
The United States accused Ms. Morrison of violating her conditions of supervised release by 1) failing to maintain employment without providing notice to her probation officer, 2) failing to truthfully answer questions asked by her probation officer, 3) interacting with someone known to be engaged in criminal activity, 4) failing to report for substance abuse testing from September, 2017, to November, 2017, 5) failing to report for substance abuse treatment, 6) failing to report for substance abuse testing on January 4, 2018, 7) failing to follow the instructions of her probation officer, 8) failing to truthfully answer questions asked by her probation officer, 9) failing to report for substance abuse testing on January 10, 2018, 10) possessing a controlled substance, 11) using a controlled substance, 12) failing to truthfully answer questions asked by her probation officer, and 13) failing to participate in substance abuse testing on January 12, 2018. Ms. Morrison admitted to the allegations. Her supervised release should be revoked. She should be sentenced to six months of custody, with forty-seven months of supervised release to follow. As added conditions of her release, Ms. Morrison shall complete the Passages Alcohol and Drug Treatment Program, and shall not possess, ingest, or inhale any toxic substances, including but not limited to, synthetic marijuana, kratom and/or synthetic stimulants such as bath salts and spice.
Ms. Morrison pleaded guilty to Conspiracy to Distribute Controlled Substance in July 2009. United States District Judge for the District of Wyoming Alan Johnson sentenced her to 120 months in custody followed by sixty months of supervised release. She began her current term of supervised release on January 18, 2013.
Jurisdiction over this case was transferred to the District of Montana in September 2013. (Doc. 1). The United States Probation Office submitted a Petition/Order Setting Conditions of Release with Consent of Offender in September 2014 modifying the terms of Ms. Morrison's supervised release to include increased drug and alcohol testing and drug or mental health treatment because she consumed alcohol. (Doc. 5). Ms. Morrison completed a twelve week outpatient chemical dependency program following the modification. (Doc. 6).
On November 30, 2016, the United States Probation Office filed a petition asking the Court to revoke Ms. Morrison's supervised release for her use of methamphetamine and committing another crime. (Id.) Ms. Morrison's supervised release was revoked, and she was sentenced to seven months custody with fiftythree months of supervised release to follow. (Doc. 18). Ms. Morrison began her current term of supervised release on
On December 28, 2017, the United States Probation Office filed a petition asking the Court to revoke Ms. Morrison's supervised release. The petition alleged that on August 3, 2017, Ms. Morrison resigned from her employment without giving prior notice to her probation officer. The petition also alleged that Ms. Morrison was untruthful to her probation officer in lying about her contact with someone she knew was engaged in criminal activity. Ms. Morrison discovered she was pregnant following an intimate relationship with a convicted federal felon, and falsely denied further association with the felon to her probation officer. The petition further alleged that Ms. Morrison failed to report for substance abuse testing on September 26, 2017, October 23, 2017, and November 24, 2017. Finally, the petition alleged that on November 15, 2017, Ms. Morrison failed to report for her scheduled substance abuse treatment. (Doc. 21). Based on the petition, United States District Court Judge Charles Lovell issued a warrant for her arrest. (Doc. 22). Ms. Morrison was arrested on January 12, 2018.
On January 17, 2018, the United States Probation Office filed an amended petition addressing further alleged violations. The amended petition alleged that on January 4, 2018, Ms. Morrison failed to report for substance abuse testing. Also, it alleged that on January 10, 2018, Ms. Morrison called her probation officer asking to be excused from a scheduled drug test in Butte, Montana, stating she was in Great Falls, Montana, because her uncle was in the hospital for organ failure. The officer instructed her to report to the Great Falls probation office for testing, but Ms. Morrison indicated that she was driving to Butte to provide a drug test, and refused to return to Great Falls when instructed to. On January 12, Ms. Morrison allegedly told her probation officer that she did not report for testing because she had used methamphetamine the previous day. The petition also alleged that on January 12, 2018, Ms. Morrison reported for drug testing and tested negative. She was subsequently arrested on the warrant previously issued, and after searching her person, the officer found a device typically used to substitute urine to adulterate drug test results. Ms. Morrison denied having the device for that purpose, but a second urinalysis test was positive for methamphetamine. Ms. Morrison then admitted to ingesting methamphetamine on January 9, 2018.
Ms. Morrison appeared before the undersigned for her initial appearance on January 17, 2018, in Great Falls, Montana. Federal Defender Evangelo Arvanetes accompanied her. Assistant United States Attorney Jeff Starnes represented the United States.
Ms. Morrison said she had read the petition and understood the allegations. She waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned. Mr. Arvanetes requested time to prepare for a revocation hearing, to which the United States did not object. The hearing was continued.
On April 9, 2018, the Court resumed the revocation hearing. Federal Defender David Ness represented Ms. Morrison, and Mr. Starnes represented the United States. Ms. Morrison admitted that she violated the conditions of her supervised release. The violations are serious and warrant revocation of her supervised release.
Ms. Morrison's violation grade is Grade C, her criminal history category is III, and her underlying offense is a Class A felony. She could be incarcerated for up to sixty months. She could be ordered to remain on supervised release for fifty-three months, less any custody time imposed. The United States Sentencing Guidelines call for five to eleven months in custody.
Mr. Ness recommended a sentence of time-served, arguing that Ms. Morrison had perspective of her problems and that she would benefit from treatment and continued supervised release. Ms. Morrison addressed the Court and stated that she had a long history of drug use and that she is now adamant about succeeding. Ms. Morrison requested inpatient treatment. Mr. Starnes argued for a guideline sentence, noting his concern of Ms. Morrison's deceptive behaviors to her probation officer. Mr. Starnes did not object to inpatient treatment.
The Court moved to add the following conditions to Ms. Morrison's conditions of supervised release:
The parties did not object to the conditions.
Ms. Morrison's supervised release should be revoked because she admitted violating its conditions. She should be sentenced to six months in custody, with forty-seven months of supervised release to follow. Upon release from custody, Ms. Morrison shall participate in and complete a substance abuse treatment program at Passages in Billings, Montana. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
Ms. Morrison was advised that the above sentence would be recommended to Judge Morris. The Court reminded her of her right to object to these Findings and Recommendations within 14 days of their issuance. The undersigned explained that Judge Morris would consider her objection, if it is filed within the allotted time, before making a final determination on whether to revoke her 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:
forty-seven (47) 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.
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 (34 U.S.C. 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in 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 participate in and successfully complete the Passages Alcohol and Drug Treatment Program, an inpatient substance abuse treatment facility located in Billings, Montana, until 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.
2. The defendant shall participate in and complete programs for mental health and/or 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 all or part of the costs of treatment as directed by the United States Probation Office.
3 The defendant shall participate in substance abuse testing to include not more than 365 urinalysis tests, not more than 365 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.
4. The defendant shall not possess or ingest alcohol and shall not enter establishments where alcohol is sold on a retail basis for consumption on the premises.
5. The defendant shall not purchase, possess, use, distribute or administer marijuana, or obtain or possess a medical marijuana card or prescription.
6. The defendant shall not possess, ingest or inhale any toxic substances such as, but not limited to, synthetic marijuana, kratom and/or synthetic stimulants such as bath salts and spice, that are not manufactured for human consumption, for the purpose of altering the defendant's mental or physical state.
7. The defendant shall submit their 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.
