Filed: Dec. 27, 2017
Latest Update: Dec. 27, 2017
Summary: REPORT AND RECOMMENDATION TIM A. BAKER , Magistrate Judge . On December 20 and 22, 2017, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on August 11, 2016. Defendant Henson appeared in person with his appointed counsel Joseph Cleary and retained counsel Sam Ansell. The government appeared by Michelle Brady and Barry Glickman, Assistant United States Attorney. U. S. Parole and Probation appeared by Officer Chris Dougherty. The Court cond
Summary: REPORT AND RECOMMENDATION TIM A. BAKER , Magistrate Judge . On December 20 and 22, 2017, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on August 11, 2016. Defendant Henson appeared in person with his appointed counsel Joseph Cleary and retained counsel Sam Ansell. The government appeared by Michelle Brady and Barry Glickman, Assistant United States Attorney. U. S. Parole and Probation appeared by Officer Chris Dougherty. The Court condu..
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REPORT AND RECOMMENDATION
TIM A. BAKER, Magistrate Judge.
On December 20 and 22, 2017, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on August 11, 2016. Defendant Henson appeared in person with his appointed counsel Joseph Cleary and retained counsel Sam Ansell. The government appeared by Michelle Brady and Barry Glickman, Assistant United States Attorney. U. S. Parole and Probation appeared by Officer Chris Dougherty.
The Court conducted the following procedures in accordance with Fed. R. Crim. P. 32.1(a)(1) and 18 U.S.C. § 3583:
1. The Court advised Defendant Henson of his rights and provided him with a copy of the petition. Defendant Henson orally waived his right to a preliminary hearing.
2. After being placed under oath, Defendant Henson admitted violations 1, 2, 3, 4, and 5. [Docket No. 1730.]
3. The allegations to which Defendant admitted, as fully set forth in the petition, are:
Violation
Number Nature of Noncompliance
1 "The defendant shall not commit another federal, state, or local crime."
Michael Henson was arrested and charged with Operating a Vehicle While
Intoxicated, A misdemeanor, on June 14, 2016. This case is pending in
Jackson County Superior Court, under cause number 36D011606CM-630,
and set for trial on September 1, 2016. Mr. Henson was pulled over by an
officer of the Brownstown, Indiana, Police Department for speeding. The
officer could smell an alcoholic beverage on the offender's breath and
observed an open bottle of an alcoholic beverage container near the
vehicle's passenger door. The offender failed a field sobriety test and
tested .147 BAC. The offender admitted to this officer that he was
drinking alcohol prior to his arrest for this offense.
2 "The defendant shall refrain from the excessive use of alcohol and shall
not purchase, possess, use or distribute, or administer any controlled
substance or any paraphernalia related to any controlled substances,
except as prescribed by a physician."
As noted above, the offender was arrested and charged with Operating a
Vehicle While Intoxicated and admitted to the probation officer of
drinking alcohol prior to the arrest.
3 "The defendant shall not possess a controlled substance. The defendant
shall refrain from unlawful use of a controlled substance."
On July 11, 2016, the offender submitted a urine screen which tested
positive for methamphetamine. The offender initially lied when
questioned regarding this positive drug test, and claimed he took an
Adderall pill given to him by a neighbor, he later admitted his use of
methamphetamine. The offender admitted to this probation officer that he
snorted methamphetamine on at least three to four occasions before and
after July 11, 2016. On August 1, 2016, the offender submitted a positive
test for methamphetamine at Centerstone, his substance abuse treatment
center in Columbus, Indiana.
4 "The defendant shall be monitored by the BI SL2 (alcohol monitoring
device) for a period of up to 120 days, to commence as soon as practical,
and shall abide by all the technology requirements. You shall pay all
of the costs of participation in the program, in accordance with your
ability to pay."
On July 13, 2016, the offender was placed on SoberLink, an alcohol
monitoring program, after he incurred a driving Under the Influence arrest
in Jackson County, Indiana. On July 30, 2016, the offender failed to take a
random breathalyzer test at 8:00 a.m. When questioned, the offender
reported he turned off his cell phone, which provided his test notifications,
as he was sleeping and did not want to be disturbed.
5 "The defendant shall participate in a substance abuse treatment
program at the direction of the probation officer, which may include
no more than eight drug tests per month. The defendant shall abstain
from the use of all intoxicants, including alcohol, while participant in a
substance abuse treatment program. The defendant is responsible for
paying a portion of the fees of substance abuse testing and/or treatment
in accordance with his ability to pay."
The offender failed to appear for two random urine drug screens on March
23, 2016, and on June 14, 2016. The offender submitted two dilute urine
screens on March 5, 2016 and on July 11, 2016.
4. The parties stipulated that:
(a) The highest grade of violation is a Grade B violation.
(b) Defendant's criminal history category is IV.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 12 to 18 months' imprisonment.
5. Government recommended a sentence of twelve (12) months with no supervised release to follow. Defendant recommended four (4) years on home detention that was ordered on his state case and hold these violations in abeyance.
The Magistrate Judge, having considered the factors in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions in the petition, that his supervised release should be revoked, and that he should be sentenced to the custody of the Attorney General or his designee for a period of twelve (12) months with no supervised release to follow. The Defendant is to be taken into custody immediately pending the District Judge's action on this Report and Recommendation.
The parties are hereby notified that the District Judge may reconsider any matter assigned to a Magistrate Judge. The parties have fourteen days after being served a copy of this Report and Recommendation to serve and file written objections with the District Judge.
