Filed: Oct. 29, 2014
Latest Update: Oct. 29, 2014
Summary: REPORT AND RECOMMENDATION J. GREGORY WEHRMAN, Magistrate Judge. On October 28, 2014 this matter came on for an evidentiary hearing on petition of the United States Probation Office that the defendant, RANDY L. GALLAGHER, show cause why his supervised release should not be revoked. The defendant was present in Court and represented by Eric G. Eckes and the United States was present through Assistant United States Attorney Jason Denney. The proceedings were electronically recorded and conducted
Summary: REPORT AND RECOMMENDATION J. GREGORY WEHRMAN, Magistrate Judge. On October 28, 2014 this matter came on for an evidentiary hearing on petition of the United States Probation Office that the defendant, RANDY L. GALLAGHER, show cause why his supervised release should not be revoked. The defendant was present in Court and represented by Eric G. Eckes and the United States was present through Assistant United States Attorney Jason Denney. The proceedings were electronically recorded and conducted ..
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REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
On October 28, 2014 this matter came on for an evidentiary hearing on petition of the United States Probation Office that the defendant, RANDY L. GALLAGHER, show cause why his supervised release should not be revoked. The defendant was present in Court and represented by Eric G. Eckes and the United States was present through Assistant United States Attorney Jason Denney. The proceedings were electronically recorded and conducted pursuant to 18 U.S.C. § 3401(I). Oral argument was presented by counsel and the defendant admitted violating the terms of his supervised release as set out in the October 27, 2014 violation report of U.S.P.O. John D'Alessandro.
After pleading guilty to one count of being a Felon in Possession of a Firearm, Gallagher was sentenced on October 21, 2010 to 37 months incarceration followed by three years supervised release. Defendant's term of supervision began June 26, 2013 and is scheduled to expire June 25, 2016.
PREVIOUSLY REPORTED VIOLATION(s)
On November 21, 2013 the Court was notified that Gallagher submitted a drug test positive for oxycodone which he described as medication not prescribed to him. He was to be referred to substance abuse counseling by the state of Kentucky, as he was also under its supervision for a previous case and agreed to have his conditions of release modified to include weekend confinement. The Court agreed with the recommendation and modified the conditions. The defendant now stands charged with the following violation:
VIOLATION NO. 1: THE DEFENDANT SHALL NOT UNLAWFULLY POSSESS A CONTROLLED SUBSTANCE. THE DEFENDANT SHALL REFRAIN FROM ANY UNLAWFUL USE OF A CONTROLLED SUBSTANCE. THE DEFENDANT SHALL 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.
On October 2, 2014 Gallagher failed to report to the probation office and submit a drug test as directed. On that same date he contacted the office indicating he was unable to report since he had no ride. On October 3, 2014 Gallagher submitted a urine sample positive for buprenorphine but denied the use of any controlled substances or medications to U.S.P.O. Suter. On October 9, 2014 defendant was set to report to the probation office for a random drug test but failed to appear. Further investigation revealed that Gallagher was arrested on October 8, 2014 by the Cold Spring, Kentucky police for driving on a suspended license and an outstanding parole violation warrant.
The parties have reached an agreement as to the appropriate punishment for the above infraction, and the Court being satisfied from dialogue with the defendant that he understands the nature of the charge now pending against him, has had ample opportunity to consult with counsel, and enters this agreement knowingly and voluntarily, accordingly;
IT IS RECOMMENDED:
1. That the defendant be found to have violated the terms of his supervised release as set out above and that it be REVOKED; 2. That the defedant, RANDY L. GALLAGHER, be sentenced to the custody of the Attorney General for a period of TWLEVE MONTHS AND ONE DAY with no supervised release to follow;
3. That defendant's incarceration be at an FCI closest to Covington, Kentucky in the discretion of the Bureau of Prisons;
4. That while incarcerated the defendant participate in the 40 hour drug treatment program in the discretion of the Bureau of Prisons.
Particularized objections to this Report and Recommendation must be filed within fourteen (14) days of the date of service of the same or further appeal is waived. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985); Wright v. Holbrook, 794 F.2d 1152, 1154-55) (6th Cir. 1986). If the defendant wishes to address the District Court prior to sentencing, the defendant must so notify the Court in writing within fourteen (14) days. A party may file a response to another party's objections within fourteen (14) days after being served with a copy thereof. Rule 72(b), Fed.R.Civ.P.
