JOHN JOHNSTON, Magistrate Judge.
Mr. Kicking Woman was accused of violating his conditions of supervised release by consuming alcohol. Mr. Kicking Woman admitted he consumed alcohol. His supervised release should be revoked. He should be sentenced to six months of custody, with 24 months of supervised release to follow. A condition requiring Mr. Kicking Woman to reside at a residential reentry center for 180 days should be added.
In January 2014, Mr. Kicking Woman pleaded guilty to Burglary. (Doc. 18.) United States District Court Judge Brian Morris sentenced Mr. Kicking Woman to 24 months in custody and 36 months of supervised release. (Doc. 22.) Mr. Kicking Woman's first term of supervised release began on August 13, 2015. (Doc. 27.)
On September 30, 2015, Mr. Kicking Woman's supervised release was revoked because he violated the conditions of his supervised release by failing to work regularly at a lawful occupation, failing to permit his probation officer to visit him at any time, and consuming alcohol. Mr. Kicking Woman was sentenced to six months of custody and 30 months of supervised release. (Doc. 35.)
On March 3, 2016, the United States Probation Office filed a petition asking the Court to revoke Mr. Kicking Woman's supervised release. (Doc. 37.) The Probation Office accused Mr. Kicking Woman of violating Special Condition 5 of his supervised release by consuming alcohol. (Doc. 37.) Based on the petition, Judge Morris issued a warrant for Mr. Kicking Woman's arrest. (Doc. 38.)
Mr. Kicking Woman appeared before the undersigned on March 7, 2016, in Great Falls, Montana, for an initial appearance. Federal Defender Henry Branom accompanied him at the initial appearance. Assistant United States Attorney Jeffrey Starnes represented the United States.
Mr. Kicking Woman said he had read the petition and understood the allegations. Mr. Kicking Woman waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned. The hearing commenced.
On March 7, 2016, Mr. Kicking Woman appeared with Mr. Branom before the undersigned for a revocation hearing. Mr. Starnes appeared on behalf of the United States. Mr. Kicking Woman admitted that he violated the conditions of his supervised release by using alcohol. The violation is serious and warrants revocation of Mr. Kicking Woman's supervised release.
Mr. Kicking Woman's violation grade is Grade C, his criminal history category is II, and his underlying offense is a Class C felony. He could be incarcerated for up to 24 months. He could be ordered to remain on supervised release for 30 months, less any custody time imposed. The United States Sentencing Guidelines call for four to ten months in custody.
Mr. Branom argued a low end sentence of four months of custody would be appropriate and recommended the Court add a condition requiring Mr. Kicking Woman to reside at a residential reentry center for 180 days. Both parties noted that it was troubling that Mr. Kicking Woman violated the conditions of his supervised release within hours of his release from custody. Mr. Starnes argued that a term of custody of six months was not enough to get Mr. Kicking Woman's attention. He argued a sentence of eight months of custody would keep Mr. Kicking Woman away from temptation and get his attention.
Mr. Kicking Woman addressed the Court and explained that he will only be able to succeed if he does not return to the reservation. He asked for time at a residential reentry center and said he hopes to stay in Great Falls. He requested that the Court recommend he be placed at the Federal Correctional Institution in Sheridan, Wyoming.
Mr. Kicking Woman's supervised release should be revoked because he admitted violating its conditions. Mr. Kicking Woman should be sentenced to six months of custody, with 24 months supervised release to follow. The conditions of supervised release previously imposed should be continued, and a condition requiring Mr. Kicking Woman to reside at a residential reentry center should be added. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
Mr. Kicking Woman 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. Kicking Woman's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Kicking Woman's supervised release and what, if any, sanction to impose.
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:
Six months.
[✓] The court makes the following recommendations to the Bureau of Prisons:
Mr. Kicking Woman should be housed at the Federal Correctional Institution in Sheridan, Wyoming.
[✓] 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:
24 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. 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 180 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.
2. 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.
3. 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.
4. 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.
5. The defendant will provide the United States Probation Officer with any requested financial information and shall incur no new lines of credit without prior written approval of the United States Probation Officer.
6. 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.
7. 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.
8. The defendant shall have no contact with victim(s) in the instant offense.
9. 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 his mental or physical state.
10. The defendant is not to operate a motor vehicle, unless written permission is obtained from United States Probation.
