REPORT AND RECOMMENDATION

JOHN Z. BOYLE, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

Pending before the Court is a Petition to Revoke Supervised Release (Doc. 3) filed on September 9, 2014. Pursuant to a Standing Order of Referral, dated July 9, 2014, the Honorable Susan R. Bolton, United States District Judge, referred the Petition to Revoke Supervised Release in the above-numbered case to the undersigned Magistrate Judge to conduct a "hearing and preparation of findings and recommendations . . . and submit the necessary Report and Recommendation . . ." as authorized under 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3). The parties consented in writing that this Magistrate Judge conduct the hearing on the Petition.1

I. Procedural Background

On March 11, 2002, Defendant pleaded guilty, pursuant to a plea agreement, in the District of New Mexico, to Aggravated Sexual Abuse of a Child. (Presentence Report (PSR) ¶ 4.) On July 16, 2002, the District Court of New Mexico sentenced Defendant to 180 months of imprisonment, followed by 60 months of supervised release. (Doc. 1-2.) Defendant's supervised release commenced on May 2, 2014. On May 5, 2014, Senior United States Probation Officer Josephine Begay met with Defendant and reviewed Defendant's conditions of supervised release. Defendant was referred to H & H Treatment Services for sex offender treatment, and was referred to Tuba City Regional Health Care Center for mental health treatment. Transfer of jurisdiction from New Mexico to Arizona was approved by the Honorable Susan R. Bolton on May 19, 2015. On July 23, 2014, Defendant met with Officer Begay to accept a Modification of Supervised Release Conditions. Defendant signed and dated his acknowledgement of the modifications. (Exh. 2.)

On September 9, 2014, a Petition to Revoke Supervised Release was filed alleging two violations:

(Doc. 3.)2

Defendant was arrested on September 12, 2014. (Doc. 6.) Competency proceedings delayed this matter from September 18, 2014 (Doc. 7) to June 9, 2015 (Doc. 26).

On August 11, 2015, this Court conducted an evidentiary hearing. (Doc. 42.) Defendant was present and assisted by counsel. The Government presented one witness (Officer Begay) and admitted two exhibits into evidence without objection by Defendant—(1) a Discharge Summary with attachments, and (2) a Waiver and Order regarding Modification of Supervised Release Conditions.3 (Exhs. 1, 2.) Defendant testified.

II. Findings of Fact

The Court submits the following findings of fact, which are largely undisputed by the parties.

a. Senior Probation Officer Josephine Begay

On May 5, 2014, Officer Begay met with Defendant to review his conditions of supervised release. Defendant told Officer Begay that spirits told him Officer Begay should be his wife. Officer Begay told Defendant that his comments were inappropriate. Defendant agreed to modify his behavior and he stated he was willing to attend mental health treatment.

On July 29, 2015, Defendant sent several text messages to Heather Young, his primary treatment therapist at H & H Treatment Programs. (Exh. 1.) The texts were sent from Defendant's phone (ending in "9801") and Defendant acknowledged to Officer Begay that he sent the texts. Four pages of texts from Defendant's phone are contained on the left side of the document. One text from therapist Young is contained on the right side of the first page of the document. Officer Begay testified that Defendant told therapist Young that he wanted to "be with" her and wanted her to be his wife. The text messages contained no threats. On August 5, 2014, Officer Begay spoke with Defendant regarding his inappropriate comments, and Defendant agreed to modify his behavior.

From May to August, 2014, Defendant attended sex offender treatment. Defendant caused substantial disruption in his therapy and group sessions because he refused to acknowledge he committed the crime in this case. Officer Begay testified that Defendant continually asserted throughout sex offender treatment that a different Arnold Begay committed the crime, and Defendant would not take responsibility for his prior conduct. Officer Begay testified that she reviewed a September 1, 2014 Discharge Summary from H & H Treatment Programs, which documented Defendant's conduct. (See Exh. 1, Discharge Summary ("At this time this offender is deemed unamendable to treatment. Offender is very delusional in his goals and objectives in the treatment process. Mr. Begay has fixated obsessively on clearing the label `sex offender' from his records and has continuously attempted to debate his `case' in group treatment sessions in spite of having been advised and warned of the consequences.").)

On August 29, 2014, Defendant sent several messages to H & H Clinical Supervisor, Beau Harvey. (Exh. 1, "Texts from Arnold Begay to Beau Harvey.") Three texts to Supervisor Harvey threatened that the "Father" said Harvey would be "going to Hell and lake of fire." (Id.) A text at 9:17 P.M. stated that "Bow now you c Bow u better not run your mouth to no one. You well get you xxx kick or kill. So better be careful Heather is my wife. -AJB-." (Id.) At 9:33 P.M., a text stated "Bow, these people out there don't like a rat. It's the same in prison." (Id.)

On September 1, 2014, Defendant was unsuccessfully discharged from sex offender treatment. Between August 26, 2014 and September 1, 2014, Defendant was discharged from mental health treatment because he continued to deny responsibility for his offense and insisted a different Arnold Begay committed the offense. Despite his discharge, Defendant told staff members that he wished to continue with treatment in both programs. Defendant was not seen by a psychiatrist prior to his discharge.

b. Arnold James Begay

Defendant testified and agreed that he voluntarily pleaded guilty to the crime of conviction in this case.4 He agreed he is the Arnold Begay who pleaded guilty and was sentenced to imprisonment. He stated that he pleaded guilty to avoid a term of lifetime imprisonment. He asserted that a different Arnold Begay committed the offense in this case.

Defendant agreed that he had previously been convicted in New Mexico for sexual misconduct offenses that occurred in 1991. (See also, PSR ¶ 29.) Defendant testified that he wished to speak about this New Mexico offense during treatment, but Supervisor Harvey continued to request Defendant speak about his current case. Defendant testified that he was "frustrated" with Supervisor Harvey. He testified that Harvey would "snitch" on him to Senior Officer Begay. When asked why he threatened Supervisor Harvey, Defendant said it was his intent to make Supervisor Harvey more polite.

Defendant agreed that he understood his terms of supervised release. He agreed that he understood that he was required to participate in mental health and sex offender treatment.

The Court asked Defendant if he was contacted by Senior Officer Begay regarding inappropriate text messages to therapist Young. Defendant stated he had been told not to make contact with therapist Young. Defendant testified he agreed to stop making that contact, but he still wished to contact therapist Young to discuss his spiritual connection and revelation from God. When asked why he agreed to follow some requests (discontinuing contact with therapist Young) but did not follow others (discontinuing discussing his prior state conviction), Defendant said he was not guilty of the federal offense.

III. Conclusions of Law

"A district court may `revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release.'" United States v. Vallejo, 69 F.3d 992, 994 (9th Cir. 1995) (quoting 18 U.S.C. § 3583(e)(3)).

The Court is required to determine if Defendant failed to participate in sex offender treatment and mental health treatment. It is undisputed that Defendant was unsuccessfully discharged from his treatment programs, which is listed as the nature of noncompliance in the Petition. (Doc. 3.) But the government is required to prove that Defendant violated his term of supervised release. Defendant's terms of supervised release in the Petition required him to participate in treatment programs. See United States v. Davis, 481 Fed. Appx. 339, 340 (9th Cir. 2012) (unpublished) (finding that "the district court needed to decide whether Davis's expulsion from New Frontiers constituted a violation of a condition of his supervised release" and that "the district court did not clearly err in finding that Davis was at least partially responsible" for his failure to complete residential drug treatment).

The Court finds that Defendant failed to participate as required. First, Defendant did not participate in his treatment programs because he refused to acknowledge his guilt in the current offense. Defendant testified to this fact and continued to contest his guilt in court. Defendant maintained this belief before and after competency proceedings. At a minimum, Defendant was capable of stopping his disruption of his treatment programs. Defendant also continued to insist that he discuss his New Mexico case despite numerous requests that he not do so. The record demonstrates Defendant was capable of modifying his behavior regarding inappropriate statements to Officer Begay and therapist Young. Defendant had the ability to modify his behavior when asked to stop discussing his New Mexico case. This Court is mindful of Defendant's serious mental health issues, but the record demonstrates that Defendant's conduct listed above was voluntary.

Second, Defendant admitted that he threatened Supervisor Harvey. Defendant stated he did so because he was frustrated with Harvey and wanted Harvey to be more polite. The text messages of August 29, 2014 from Defendant to Supervisor Harvey include a threat of violence. (See Exh. 1 ("You well get you xxx kick or kill. So U better be careful Heather5 is my wife.").) Defendant also texted to Supervisor Harvey that he would be going to "Hell and lake of fire" and that "people out there don't like rat." (Id.) Threatening staff members with violence is a failure to participate in a treatment program.

The Court does not find that Defendant's inappropriate statements to Officer Begay or therapist Young demonstrated a failure to participate in his treatment programs. Defendant acknowledged his conduct and agreed to modify his behavior.

IV. Recommendation

Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and LRCrim 57.6(d)(4), Rules of Practice for the District of Arizona, the undersigned Magistrate Judge RECOMMENDS that the Honorable Susan R. Bolton, United States District Judge, after an independent review of the record, find Defendant violated the terms of supervised released contained in Allegations A and B.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(b)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

IT IS ORDERED setting a final disposition hearing for September 14, 2015, at 2:45 p.m. before the Honorable Susan R. Bolton, United States District Judge, in Courtroom 502, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona.

IT IS FURTHER ORDERED that the U.S. Probation Department shall prepare a Disposition Report and the Defendant shall cooperate with the Probation Department in its preparation of the Disposition Report.

IT IS FURTHER ORDERED that the parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rule 59(b)(2), Federal Rules of Criminal Procedure. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Judge without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 59, Federal Rules of Criminal Procedure.