JOHN JOHNSTON, Magistrate Judge.
The United States accused Mr. Shigley of violating his conditions of supervised release by failing to complete sex offender treatment. Mr. Shigley admitted to the violations. The district court should revoke his supervised release and sentence him to six months of custody, with 112 months of supervised release to follow.
In February 2010, Mr. Shigley pleaded guilty to Viewing Child Pornography (Count I) and Possession of a Child Pornography (Count II). (Doc. 19.) United States District Court Judge Sam E. Haddon sentenced Mr. Shigley to seventy-two months of custody on Count I and seventy-two months of custody on Count II, to run concurrently. Judge Haddon also sentenced Mr. Shigley to 120 months of supervised release to follow. (Doc. 29.) Mr. Shigley's first term of supervision began on April 24, 2015. (Doc. 60.)
On April 14, 2016, United States Probation Officer Kevin Heffernan, Sex Offender Counselor Shawn Abbot, and United States Probation Officer Tom Kelly held a non-compliance hearing during which Mr. Shigley admitted to being in the company of under-aged children. After the hearing, Mr Shigley said he understood that further violations of his supervised release would result in revocation.
On November 9, 2016, United States District Judge Brian Morris revoked Mr. Shigley's supervised release because he failed to complete sex offender treatment. (Doc. 53.) Judge Morris sentenced him to two months in custody, with 118 months of supervised release to follow. (Id.) His current term of supervised release began on December 13, 2016.
On February 24, 2017, the United States Probation Office filed a petition asking the Court to revoke Mr. Shigley's supervised release. The USPO accused Mr. Shigley of violating the conditions of his supervised release by failing to complete sex offender treatment. (Doc. 56.) Based on the petition, United States Judge Morris issued a warrant for Mr. Shigley's arrest. (Doc. 57.)
On February 28, 2017, Mr. Shigley appeared before the undersigned in Great Falls, Montana for an initial appearance. Federal Defender Evangelo Arvanetes accompanied him at the initial appearance. Assistant United States Attorney Ryan Weldon represented the United States.
Mr. Shigley said he had read the petition and understood the allegations. He waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned but requested a week to prepare for the hearing. The Court granted his request and continued the hearing until March 7, 2017.
On March 17, 2017, the Court conducted Mr. Shigley's revocation hearing. Mr. Shigley admitted he violated the conditions of his supervised release. The violation is serious and warrants revocation of his supervised release.
Mr. Shigley's violation grade is Grade C, his criminal history category is I, and his underlying offenses are Class C felonies. He could be incarcerated for up to twenty-four months on Count I and twenty-four months on Count II. He could be ordered to remain on supervised release for 118 months on Count I and 118 months on Count II, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody for each count.
Mr. Arvanetes recommended a sentence of two weeks in custody. Mr. Shigley exercised his right of allocution and stated that he recognizes that he needs to comply with the conditions of his supervised release. Assistant United States Attorney Weldon recommended a sentence six months in custody, with 112 months of supervised release to follow.
Mr. Shigley's supervised release should be revoked because he violated its conditions. A sentence of six months in custody for each count followed by 112 months of supervised release for each count to follow is appropriate. The sentences should run concurrently. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
Mr. Shigley 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 his objection, if it is filed within the allotted time, before making a final determination on whether to revoke his 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) count(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:
6 months
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 the location 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:
1. The defendant shall enter and successfully complete a sex offender treatment program. The defendant is to enter a program designated by, and until released by, the United States Probation Office. The defendant is to pay all or part of the costs of treatment as directed by the United States Probation Office.
2. The defendant shall submit to not more than six polygraph examinations per year as directed by United States Probation to assist in treatment, planning, and case monitoring. The defendant maintains the Fifth Amendment rights during polygraph examinations and may refuse to answer any incriminating questions. The defendant is to pay all or part of the cost of the examinations as directed by the United States Probation Office.
3. All employment must be approved in advance in writing by the United States Probation Office. The defendant shall consent to third-party disclosure to any employer or potential employer.
4. The defendant shall not be allowed to do the following without prior written approval of United States Probation: knowingly reside in the home, residence, or be in the company of any child under the age of 18, with the exception of their own children; go to or loiter within 100 yards of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18.
5. The defendant shall not possess camera phones or electronic devices that could be used for covert photography without the prior written approval of the United States Probation Office.
6. The defendant shall not knowingly acquire, possess, or view any materials depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A), if the materials, taken as a whole, are primarily designed to arouse sexual desire, unless otherwise approved by the supervising probation officer in conjunction with defendant's sex offender treatment provider. This condition applies to written stories, visual, auditory, telephonic, or electronic media, computer programs or services, and any visual depiction as defined in 18 U.S.C. § 2256(5). The defendant shall not knowingly patronize any place where sexually explicit material or entertainment is the primary item of sale, such as adult bookstores, clubs, or internet sites, unless otherwise approved by the supervising probation officer in conjunction with defendant's sex offender treatment provider. The defendant shall not utilize 900 or adult telephone numbers or any other sex-related numbers, or online chat rooms that are devoted to the discussion or exchange of sexually explicit materials as defined above.
7. The defendant shall submit his person, and any property, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), other electronic communications or data storage devices or media, to which the defendant has access, to a search at a reasonable time and a reasonable manner, with or without a warrant, by the United States Probation Office, or by any law enforcement officers upon the express direction of the United States Probation Office, with reasonable suspicion concerning a violation of a condition of supervision or unlawful conduct by the defendant. Failure to submit to search may be grounds for revocation. The defendant shall warn any other occupants, adults, and minors that the premises may be subject to searches pursuant to this condition. The defendant shall allow seizure of suspected contraband for further examination.
8. The defendant shall not knowingly possess or use any computer or other device with access to any online computer service without the prior written approval of the probation office. The defendant shall allow the probation office to make unannounced examinations of his computer, hardware, and software, which may include the retrieval and copying of all data from defendant's computer. The defendant shall allow the probation office to install software to restrict the defendant's computer access or to monitor the defendant's computer access. The defendant shall not possess encryption or steganography software. The defendant shall provide records of all passwords, internet service, and user identifications (both past and present) to the probation officer and immediately report changes. The defendant shall sign releases to allow the probation office to access phone, wireless, internet, and utility records.
9. 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 office. The defendant is to pay part or all of the cost of this treatment, as directed by the United States Probation Office.
10. The defendant shall participate in a program for mental health treatment as deemed necessary by the United States Probation Office, until such time as the defendant is released from the program by the probation office. The defendant is to pay part or all of the cost of this treatment, as directed by the United States Probation Office.
11. 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.
12. 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.
13. 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.
14. 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.
15. The defendant shall provide a complete record of all passwords, internet service providers, and user identifications (both past and present) to the probation office and shall not make any changes without the prior approval of the probation office.
