JOHN JOHNSTON, Magistrate Judge.
The United States of America accused Mr. Sandau of violating his conditions of supervised release by (1) submitting a urine sample that tested positive for opiates, (2) failing to report for substance abuse testing on multiple occasions, and (3) failing to report for substance abuse treatment. Mr. Sandau admitted to the violations. Mr. Sandau's supervised release should be revoked, and he should be sentenced to five months in custody, with twenty-seven months of supervised release to follow.
On November 5, 2012, Mr. Sandau pleaded guilty to Assault with a Dangerous Weapon and Assault Resulting in Serious Bodily Injury. On February 12, 2013, United States District Judge Sam Haddon sentenced Mr. Sandau to forty-five months for Count I and forty-five months for Count II, with terms to run concurrently. Judge Haddon also sentenced Mr. Sandau to thirty-six months of supervised release to follow on each count, with the terms of supervised release to run concurrently. (Doc. 44.) Mr. Sandau's first term of supervised release began on March 1, 2016.
On April 7, 2016, the Court received a Report of Offender Under Supervision reporting that Mr. Sandau had submitted a urine sample that tested positive for marijuana. (Doc. 47.) The Court allowed the United States Probation Office (USPO) to continue working with Mr. Sandau. On May 6, 2016, the Court received another Report of Offender Under Supervision reporting that Mr. Sandau had once again submitted a urine sample that tested positive for marijuana and had failed to comply with substance abuse treatment. (Doc. 49.) The Court allowed the USPO to continue working with Mr. Sandau.
United States District Judge Brian Morris revoked Mr. Sandau's supervised release on November 1, 2017, because he used controlled substances, used alcohol, and failed to comply with substance abuse testing and treatment. (Doc. 61.) Judge Morris sentenced him to time served, with thirty-three months of supervised release to follow. (Id.)
The Probation Office filed a Report on Offender Under Supervision on February 8, 2017, notifying the Court that Mr. Sandau submitted urine samples that tested positive for opiates. (Doc. 63.) Judge Morris allowed him to continue his supervision.
On July 17, 2017, the Probation Office filed a Petition for Warrant for Offender Under Supervision alleging that Mr. Sandau violated his supervised release by (1) submitting a urine sample that tested positive for opiates, (2) failing to report for substance abuse testing on multiple occasions, and (3) failing to report for substance abuse treatment. (Doc. 64.)
On July 25, 2017, Mr. Sandau appeared before the undersigned in Great Falls, Montana. Federal Defender Anthony Gallagher accompanied him. Assistant United States Attorney Jared Cobell represented the United States.
Mr. Sandau said he had read the petition and understood the allegations. He waived the preliminary hearing, and the parties consented to proceed before the undersigned.
Mr. Sandau admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of Mr. Sandau's supervised release.
Mr. Sandau'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 24 months. He could be ordered to remain on supervised release for thirty-two 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 either time served, with substance abuse treatment and supervised release to follow, or three months in custody, with supervised release to follow. Mr. Sandau exercised his right of allocution and stated that he struggled to find a job when he was released and got frustrated. Mr. Cobell recommended a sentence in the middle of the guideline range, with supervised released to follow.
Mr. Sandau's supervised release should be revoked because he admitted violating its conditions. Mr. Sandau should be sentenced to five months in custody with twenty-seven months of supervised release to follow. This sentence would be sufficient given the seriousness of the violations but not greater than necessary.
Mr. Sandau 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. Sandau's objection, if it is filed within the allotted time, before making a final determination on whether to revokehis 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 Federal Bureau of Prisons to be imprisoned for a total term of:
5 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, you will be on supervised release for a term of:
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 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.
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: www.uscourts.gov.
1. 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 directed by the United States Probation Office.
2. 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.
3. The defendant shall abstain from the consumption of alcohol and shall not enter establishments where alcohol is the primary item of sale.
4. The defendant shall not possess, 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.
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 comply with Violent Offender Registration requirements for convicted offenders in any state in which the defendant resides.
7. The defendant shall have no contact with victim in the instant offense.
8. 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.
