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U.S. v. SMITH, CR 09-01156 SBA. (2015)

Court: District Court, N.D. California Number: infdco20150921949 Visitors: 15
Filed: Sep. 18, 2015
Latest Update: Sep. 18, 2015
Summary: ORDER ACCEPTING REPORT AND RECOMMENDATION SAUNDRA BROWN ARMSTRONG , District Judge . In accordance with the parties' stipulation and 18 U.S.C. 3401(i), the Court referred this matter to United States Magistrate Judge Kandis Westmore ("Magistrate") to conduct a supervised release revocation hearing. Dkt. 185. The Magistrate conducted the hearing on September 16, 2015, at which time Defendant, who is represented by counsel, admitted the four charges alleged in the Amended Petition for Summo
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ORDER ACCEPTING REPORT AND RECOMMENDATION

In accordance with the parties' stipulation and 18 U.S.C. § 3401(i), the Court referred this matter to United States Magistrate Judge Kandis Westmore ("Magistrate") to conduct a supervised release revocation hearing. Dkt. 185. The Magistrate conducted the hearing on September 16, 2015, at which time Defendant, who is represented by counsel, admitted the four charges alleged in the Amended Petition for Summons for Offender Under Supervision ("Amended Summons"). Based on Defendant's admission and the parties' stipulation to the facts presented in the Amended Summons, the Magistrate found that the Government has shown by a preponderance of the evidence that the Defendant violated the conditions of his supervised release, as alleged in Charges 1, 2, 3 and 4 of the Amended Summons.

The Magistrate further found, upon the stipulation of the parties, that: (1) the Grade of the violation is C; (2) the Criminal History Category is III; and (3) and the resulting Guideline Range is 5-11 months. Consistent with the recommendations of the Probation Department and the parties' agreement thereto, the Magistrate recommends that the District Court revoke Defendant's supervised release and sentence him to the custody of the Bureau of Prisons for a period of 5 months (with credit for time served to be calculated by the Bureau of Prisons), and upon release from custody, to place him on supervised release for a period of 29 months, with all previously imposed conditions incorporated in the order by reference, with the exception of the previously-imposed special condition that he participate in residential drug treatment.

In accordance with § 3401(i), the Magistrate has filed proposed "Findings and Recommendations Regarding Supervised Release," which memorializes the findings and recommendations summarized above. Dkt. 186. As a general matter, any party may serve and file written objections to a magistrate judge's findings and recommendations within fourteen days after being served with a copy of the same. See 18 U.S.C. § 636(b)(1). In this case, however, the parties have expressly waived any objection to the Magistrate's Findings and Recommendations. In the absence of a timely objection, the District Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court has reviewed the record on its face and finds no clear error. Accordingly,

IT IS HEREBY ORDERED THAT the Magistrate Findings and Recommendations Docket is ACCEPTED. The Court finds that the Defendant, Leonard Gene Smith, violated the conditions of his supervised release and therefore REVOKES his term of supervision. Pursuant to the Magistrate's recommendation and the parties' agreement, Defendant is hereby sentenced to the custody of the Bureau of Prisons for a period of 5 months (with credit for time served to be calculated by the Bureau of Prisons). Upon release from custody, Defendant is placed on supervised release for a period of 29 months, with all previously imposed conditions incorporated into this order by reference, with the exception of the previously-imposed special condition that he participate in residential drug treatment which is not reinstated as a condition of supervised release. The Court will set forth the conditions for the new term of supervision in a separate revocation judgment.

IT IS SO ORDERED.

Source:  Leagle

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