JOHN JOHNSTON, Magistrate Judge.
The United States accused Mr. Connor of violating his conditions of supervised release by failing to reside in a residential reentry center and using methamphetamine on several occasions. He admitted to the violations. Mr. Connor's supervised release should be revoked. He should be sentenced to eight months in custody, with credit for time served, and thirty-seven months of supervised release to follow, with the first 180 days in a residential reentry center.
Mr. Connor pleaded guilty of to the crime of Arson in July 2010. He was sentenced to forty-five months of incarceration, followed by sixty months of supervised release, and ordered to pay $220,000 restitution. (Doc. 106.) He began his first period of supervised release in Wyoming in October 2013, where he resided in a pre-release facility. Mr. Connor returned to Montana in January 2014 after he was terminated from his job, and he signed the terms of his supervision in the District of Montana on February 6, 2014. (Doc. 123.)
In March 2014, the United States Probation Office submitted a Report of Offender under Supervision, notifying the Court that Mr. Connor had used methamphetamine. (Doc. 121.) On June 5, 2014, Mr. Connor's supervised release was revoked because he violated its conditions by failing to report for urinalysis testing and failing to complete substance abuse treatment. He was sentenced to six months of custody, with 54 months of supervised release. (Doc. 130.) His second term of supervision began on November 24, 2014. (Doc. 133.)
On March 10, 2015, Mr. Connor's supervised release was revoked because he used methamphetamine, failed to participate in substance abuse testing, and failed to participate in substance abuse treatment. He was sentenced to four months of custody and 50 months of supervised release. (Doc. 141.) Mr. Connor's next term of supervised release began on June 19, 2015. (Doc. 158.)
On July 16, 2015, the United States Probation Office filed a Report of Offender under Supervision to inform the Court that Mr. Connor had used methamphetamine. (Doc. 154.)
On January 6, 2016, Mr. Connor's supervised release was revoked because he violated his conditions by using methamphetamine, failing to participate in substance abuse treatment, failing to participate in substance abuse testing, and failing to make restitution payments. He was sentenced to ninty-nine days in custody and forty-six months of supervised release. (Doc. 170.) Mr. Connor began his next term of supervised release on February 24, 2016. (Doc. 172.)
On March 15, 2016, Mr. Connor's supervised release was revoked because he used methamphetamine and failed to reside at a Residential Reentry Center. The Court sentenced Mr. Connor to time served until March 18, 2016, with forty-five months of supervised release to follow. (Doc. 179.) His current term of supervision began on March 18, 2016.
On June 29, 2016, the United States Probation Office filed a petition asking the Court to revoke Mr. Connor's supervised release. In the petition, the Probation Office accused Mr. Connor of violating his conditions of supervised release by failing to reside in a residential reentry center and using methamphetamine on several occasions. Based on the petition, United States District Judge Brian Morris issued a warrant for Mr. Connor's arrest. (Doc. 186.)
On July 8, 2016, Mr. Connor appeared before the undersigned in Great Falls, Montana. Federal Defender Hank Branom accompanied him at the initial appearance. Assistant United States Attorney Bryan Dake represented the United States.
Mr. Connor said he had read the petition and understood the allegations. He did not contest the alleged violations. Mr. Connor waived the preliminary hearing, and the parties consented to the jurisdiction of a magistrate judge for the revocation hearing. The hearing was scheduled for July 15, 2016.
On July 15, 2016, Mr. Connor appeared at the revocation hearing with Mr. Branom. Mr. Dake appeared on behalf of the United States.
Mr. Connor admitted that he violated the conditions of his supervised release as alleged in the petition. The violations are serious and warrant revocation of Mr. Connor's supervised release. A sentencing hearing was scheduled for August 2, 2016. This hearing was then reset for October 4, 2016.
On October 4, 2016, Mr. Connor appeared before the undersigned for his sentencing hearing. Mr. Branom Accompanied him. Mr. Jeffery Starnes represented the United States. Mr. Connor's violation grade is Grade C, his criminal history category is I, and his underlying offense is a Class B felony. He could be incarcerated for up to thirty-six months. He could be ordered to remain on supervised release for up to forty-five months, less any custodial time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Branom recommended that Mr. Connor receive a sentence of eight months, with credit for time served and that Mr. Conner be assigned to a Residential Reentry Center. Mr. Starnes recommended a sentence in the middle of the guideline range. Both parties agreed that Mr. Connor should reside in a Residential Reentry Center for 180 days upon release from custody.
Mr. Connor's supervised release should be revoked because he admitted violating its conditions. Mr. Connor should be sentenced eight months in custody, less time served, with thirty-seven months of supervised release to follow. Based on the parties' recommendation, Mr. Connor should be required to reside in a residential reentry center for 180 days upon release from custody. This sentence would be sufficient given the seriousness of the violations but not greater than necessary.
Mr. Connor 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. Connor's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Connor's supervised release and what, if any, sanction to impose. Mr. Connor waived his right to object.
The undersigned
The undersigned
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 term of:
8 Months
[] 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:
Defendant delivered on ______________________________ to _____________________________ at ___________________________ with a certified copy of this judgment.
Upon release from imprisonment, the defendant shall be on supervised release for a term of:
37 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, if)
[✓] 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 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 in a manner and frequency directed by the court or probation officer;
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. Defendant shall reside in a residential reentry center for 180 days.
2. 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.
3. The defendant shall not 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. This condition supersedes standard condition number 7 with respect to marijuana only.
5. 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.
6. 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.
7. 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 determined by the United States Probation Officer.
8. The defendant shall comply with Violent Offender Registration requirements for convicted offenders in any state in which the defendant resides.
9. 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.
10. The defendant shall have no contact with victims in the instant offense.
11. The defendant shall pay restitution in the amount of $220,231 jointly and severally with co-defendants. The defendant is to make payments at a rate of $200 per month, or as otherwise directed by United States Probation. Payment shall be made to the Clerk, United States District Court, Missouri River Courthouse, 125 Central Ave West, Ste 110, Great Falls, MT 59404, and shall be disbursed to:
