FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
Mr. Walker was accused of violating his conditions of supervised release by 1) using a controlled substance, 2) failing to report for substance abuse testing, 3) consuming alcohol, and 4) committing another crime. He admitted to three of the violations, but denied committing another crime. Mr. Walker's supervised release should be revoked. He should be sentenced to four months of custody, with nineteen months of supervised release to follow.
II. Status
In January 2009, Mr. Walker pleaded guilty to Voluntary Manslaughter. (Doc. 19). United States District Court Judge Sam E. Haddon sentenced Mr. Walker to seventy-eight months in custody and thirty-six months of supervised release. (Doc. 24).
Mr. Walker's first term of supervised release began on January 1, 2014. (Doc. 51). United States District Judge Brian Morris revoked Mr. Walker's supervised release on June 23, 2014, because he violated its conditions by using alcohol, failing to participate in substance abuse testing, maintaining criminal associations, and engaging in new crimes. Judge Morris sentenced Mr. Walker to three months of custody, followed by thirty-three months of supervised release. (Doc. 36). Mr. Walker began his next term of supervised release on September 18, 2014.
On December 2, 2014, Mr. Walker was accepted to Blue Thunder Lodge, a sober-living facility, for intensive outpatient treatment. (Doc. 51). On January 28, 2015, Judge Morris signed a Report on Offender Under Supervision after Mr. Walker failed to return to Blue Thunder Lodge as required. Mr. Walker was allowed to remain in the program. (Doc. 38).
On April 9, 2015, Mr. Walker appeared before Judge Morris for violating the terms of his supervised release by absconding supervision and failing to complete substance abuse treatment. Judge Morris sentenced him to custody until May 21, 2015, and until a bed was available at Blue Thunder. Judge Morris also sentenced him to thirty months of supervised release. (Doc. 49).
On July 7, 2015, the United States Probation Office filed a petition asking the Court to revoke Mr. Walker's supervised release for his failure to complete substance abuse treatment and failure to report a change in address. (Doc. 51). Mr. Walker's supervised release was revoked and he was sentenced to seven months custody with twenty three months of supervised release to follow. (Doc. 59).
On July 6, 2017, Judge Morris signed a Report on Offender Under Supervision for the illegal use of oxycodone and marijuana. (Doc. 62). Mr. Walker was allowed to remain on supervised release.
Petition
On January 3, 2018, the United States Probation Office filed a petition asking the Court to revoke Mr. Walker's supervised release. The petition alleged that on December 29, 2017, Mr. Walker reported to his probation office that he had eaten a marijuana edible on December 23, 2017. The petition also alleged that on December 25, 2017, Mr. Walker failed to report for urinalysis testing. The petition further alleged that on December 27, 2017, after being arrested, Mr. Walker admitted to consuming whiskey. Finally, the petition alleged that on that same day, Mr. Walker committed another crime-aggravated assault, sexual assault, and abuse of a family member-after an incident where Mr. Walker allegedly attacked a neighbor couple while intoxicated. (Doc. 63). Based on the petition, Judge Morris issued a warrant for Mr. Walker's arrest. (Doc. 64).
Initial appearance
Mr. Walker appeared before the undersigned on February 27, 2018, in Great Falls, Montana, for an initial appearance. Federal Defender Evangelo Arvanetes accompanied him at the initial appearance. Assistant United States Attorney Jared Cobell represented the United States.
Mr. Walker said he had read the petition and understood the allegations. Mr. Walker waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.
Revocation hearing
On February 27, 2018, Mr. Walker appeared with Mr. Arvanetes before the undersigned for a revocation hearing. Mr. Cobell appeared on behalf of the United States. Mr. Walker admitted that committed the first three violations as alleged in the petition, but denied the fourth allegation. The United States did not put on any evidence in support of the fourth violation. Therefore, the Court finds that the United States has met its burden with respect to the first three alleged violations, but not the fourth alleged violation. The admitted violations are serious and warrant revocation of Mr. Walker's supervised release.
Mr. Walker'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. He could be ordered to remain on supervised release for twenty-three months, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Arvanetes recommended either a high guideline sentence with no supervised release to follow, or a low guideline sentence followed by supervised release. Mr. Walker addressed the Court and said he did well on supervised release and requested to continue on it. He stated that when he was going to take his required urinalysis testing, the office was closed for Christmas Day. Mr. Cobell argued for a guideline sentence followed by supervised release, acknowledging that Mr. Walker was passing blame and had several 12A reports against him while on supervised release.
III. Analysis
Mr. Walker's supervised release should be revoked because he admitted violating its conditions. Mr. Walker should be sentenced to four months of custody, with nineteen months supervised release to follow. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
IV. Conclusion
Mr. Walker 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. Walker's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Walker's supervised release and what, if any, sanction to impose. The Court FINDS:
Dallas James Walker violated the conditions of his supervised release by 1) using a controlled substance, 2) failing to report for substance abuse testing, and 3) consuming alcohol.
The Court RECOMMENDS:
The District Court should enter the attached Judgment, revoking Mr. Walker's supervised release and committing Mr. Walker to the custody of the United States Bureau of Prisons for four months. He should be sentenced to nineteen months of supervised release. The same conditions of supervised release should be continued.
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.
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of: ninteen (19) months.
MANDATORY CONDITIONS
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
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)
[] 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)
[] You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
[] 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 the location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
[] You must participate in an approved program for domestic violence. (check if applicable)
STANDARD CONDITIONS OF SUPERVISION
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.
U.S. Probation Office Use Only
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.
Defendant's Signature _________________________________ Date ___________________
SPECIAL CONDITIONS OF SUPERVISION
1. The defendant shall participate in and successfully 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 tests 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. This condition supersedes standard condition number 7 with respect to alcohol consumption only.
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. This condition supersedes standard condition number 7 with respect to marijuana only.
6. The defendant shall submit their person, residence, 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.
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 directed by the United States Probation Office.
