FINDINGS OF FACT AND RECOMMENDATION ON PLEA OF TRUE BEFORE THE UNITED STATES MAGISTRATE JUDGE
KEITH F. GIBLIN, Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b) and the Local Rules for the District Court, Eastern District of Texas, the District Court referred this matter for hearing and the submission of findings of fact and a report and recommendation pursuant to 18 U.S.C. §§ 3401(i) and 3583(e). The United States alleges that the defendant, Thomas Marshall Couch, violated conditions of supervised release imposed by Chief United States District Judge Ron Clark. The United States Probation Office filed its Petition for Warrant or Summons for Offender Under Supervision (doc. #110) requesting the revocation of the defendant's supervised release. The Court conducted a hearing on February 19, 2016, in accordance with Federal Rules of Criminal Procedure 11, 32 and 32.1. The defendant was present and represented by counsel at the hearing. Having heard the evidence, this court factually finds that the defendant has violated conditions of supervision and recommends that such violation warrants the revocation of his supervised release.
After conducting the proceeding in the form and manner prescribed by Federal Rule of Criminal Procedurell, the Court finds:
a. That the defendant, after consultation with counsel of record, has knowingly, freely and voluntarily consented to the administration of the plea of true in this cause by a United States Magistrate Judge subject to a final approval and imposition of sentence by the District Court.
b. That the defendant is fully competent and capable of entering an informed plea, that the defendant is aware of the nature of the charges and the consequences of the plea, that his plea of true is a knowing and voluntary plea, not the result of force or threats, and that the plea is supported by an independent evidentiary basis in fact establishing each of the essential elements of the conduct.
STATEMENT OF REASONS
A. Procedural History
On October 15, 2014, The Honorable Ron Clark of the Eastern District of Texas sentenced defendant after he pled guilty to the offense of aggravated identity theft, a Class E felony. The Court sentenced the defendant to 24 months imprisonment followed by 1 year of supervised release subject to the standard conditions of release, plus special conditions to include financial disclosure; no new credit; gambling restriction; drug aftercare; mental health aftercare; $1500.55 restitution and a $100 special assessment. On May 6, 2015, Thomas Marshall Couch completed his period of imprisonment and began service of the supervision term. On October 30, 2015, the Court modified Couch's conditions to include the defendant shall reside in a Community Corrections Center for a period of 180 days.
B. Allegations in Petition
The United States Probation Office alleges that the defendant violated the following standard condition of supervised release:
The defendant shall refrain from any unlawful use of a controlled substance.
Specifically, on September 14, 2015, Mr. Couch submitted a urine specimen for testing via test cup which returned positive for amphetamine and methamphetamine. He admitted to using the illicit drugs prior to submitting the urine specimen.
C. Evidence presented at Hearing:
At the hearing, the Government proffered the following evidence as its factual basis for the allegations set out supra. The Government would show that on September 14, 2014, Mr. Couch submitted a urine specimen which yielded a positive result for amphetamine and methamphetamine. Mr. Couch also admitted to using the controlled substances prior to submitting the specimen by signing an admission document in the presence of his probation officer on September 17, 2015.
Defendant, Thomas Couch, offered a plea of true to the allegations. Specifically, he agreed with the evidence summarized above and pled true to the allegation that he used controlled substances in violation of his supervision conditions.
D. Sentencing Guidelines; Findings and Recommended Disposition
The allegations, supporting evidence and plea of true warrant revocation of supervised release. See 18 U.S.C. § 3583(e)(3). The Court factually finds by a preponderance of the evidence that the defendant violated a mandatory condition of his supervised release by using controlled substances. This conduct constitutes a Grade C violation under U.S.S.G. § 7B1.3(a)(1). Upon finding a Grade C violation, the Court may revoke the defendant's supervised release. See U.S.S.G. § 7B1.3(a)(2).
Based upon the Defendant's criminal history category of V and the Grade C violation, the sentencing guidelines suggest a sentence of imprisonment for a period ranging from 7 to 13 months. See U.S.S.G. § 7B1.4(a). However, because the original offense of conviction was a Class E felony, the statutory maximum imprisonment term upon revocation is one (1) year, thus capping the range suggested by the Guidelines at 12 months. See 18 U.S.C. § 3583(e)(3).
According to U.S.S.G. § 7B1.3(d), any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with a sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under U.S.S.G. § 7B1.4, and any such unserved period of community confinement, home detention, or intermittent confinement may be converted to an equivalent period of imprisonment. In this case, according to the records submitted by the Probation Office, Mr. Couch failed to serve 61 days of court-ordered community corrections time.
The Fifth Circuit states that Chapter 7 of the Sentencing Guidelines regarding the revocation of supervised release is advisory only. See United States v. Cade, 279 F.3d 265, 271 n.2 (5th Cir. 2002) (citing United States v. Montez, 952 F.2d 854, 859 (5th Cir. 1992); United States v. Headrick, 963 F.2d 777, 782 (5th Cir. 1992)). Because Chapter 7 was promulgated as an advisory policy statement and there are no applicable guidelines for sentencing after revocation of supervised release1, the Court may impose a greater or lesser sentence upon revocation. United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir. 2001). Further, a sentence imposed for revocation will be upheld unless it is in violation of the law or plainly unreasonable. Id. See also United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997) (citations omitted).
Here, the evidence and the defendant's own admission supports a finding that the defendant violated his supervision conditions. Mr. Couch pled true, agreed with the Court's recommended sentence for that violation, and waived his right to allocute before the District Court.
Accordingly, based upon the defendant's plea of true, the agreement of the parties, and the evidence presented in this case, it is the recommendation of the undersigned United States Magistrate Judge that the District Court accept the plea of true and revoke Defendant's supervised release. The undersigned magistrate judge recommends that the District Court order Defendant to serve a term of seven (7) months imprisonment. This term includes the 61 days of unserved home detention time. If possible, the Court recommends placement in the Federal Correctional Institution (FCI) in Bastrop, Texas, for the prison term.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1). A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error of unobjected-to factual findings and legal conclusions. accepted by the district court, see Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). The constitutional safeguards afforded by Congress and the courts require that, when a party takes advantage of his right to object to a magistrate's findings or recommendation, a district judge must exercise its nondelegable authority by considering the actual evidence and not merely by reviewing and blindly adopting the magistrate judge's report and recommendation. See Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983); United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981) (per curiam).
