JOHN JOHNSTON, Magistrate Judge.
Mr. Scott was accused of violating his conditions of supervised release by: (1) committing a new crime; (2) leaving the judicial district without permission; (3) using marijuana; (4) using hydrocodone without a prescription; (5) failing to report for substance abuse testing; and (6) failing to report for substance abuse treatment. He admitted to the violations. Mr. Scott's supervised release should be revoked. He should be placed in custody for eight months, with no supervised release to follow.
Mr. Scott pleaded guilty of to the crime of Assault Resulting in Serious Bodily Injury in April 2010. He was sentenced to 33 months of incarceration, followed by 36 months of supervised release. (Doc. 23.) His first term of supervised release began on August 14, 2012. (Doc. 25.)
On January 15, 2013, Mr. Scott's supervised release was revoked because he violated its conditions by failing to: participate in substance abuse treatment, participate in substance abuse testing, follow the instructions of his probation officer, and notify his probation officer of a change in address. He was sentenced to 11 months of custody, with 24 months of supervised release. (Doc. 35.) His second term of supervision began on October 18, 2013. (Doc. 37.)
On January 15, 2014, Mr. Scott's supervised release was revoked because he used a controlled substance and alcohol and failed to participate in substance abuse treatment. He was sentenced to six months of custody and 19 months of supervised release. (Doc. 46.) Mr. Scott's third term of supervised release began on July 7, 2014. (Doc. 33.)
On February 25, 2014, Mr. Scott's supervised release was revoked because he violated its terms by failing to notify his probation officer of a change in address, using alcohol, failing to participate in substance abuse testing, and failing to participate in substance abuse treatment. Mr. Scott was sentenced to six months of custody and 13 months of supervised release. (Doc. 62.) Mr. Scott began his current term of supervision on July 17, 2015. (Doc. 65.) On November 12, 2015, the United States Probation Office filed a Report of Offender under Supervision to inform the Court that Mr. Scott had consumed marijuana, failed to report as directed, failed to report for substance abuse treatment, and failed to report for substance abuse testing. (Doc. 64.)
On December 8, 2015, the United States Probation Office filed a petition asking the Court to revoke Mr. Scott's supervised release. In the petition, the Probation Office accused Mr. Scott of committing a new crime in violation of the Preamble to the Standard Conditions of his supervised release. The Probation Office accused Mr. Scott of leaving the District of Montana without permission in violation of Standard Condition 1. The Probation Office accused Mr. Scott of violating Standard Condition 7 by using marijuana. The petition alleged Mr. Scott violated Standard Condition 7 by using hydrocodone without a valid prescription. The petition also alleged Mr. Scott violated Special Condition 1 of his supervised release by failing to report for substance abuse testing. Finally, the petition alleged Mr. Scott violated Special Condition 2 of his supervised release by failing to report for substance abuse treatment. (Doc. 65.) Based on the petition, United States District Judge Brian Morris issued a warrant for Mr. Scott's arrest. (Doc. 66.)
Mr. Scott appeared before the undersigned on December 15, 2015, in Great Falls, Montana. Federal Defender Henry Branom accompanied him at the initial appearance. Assistant United States Attorney Ryan Weldon represented the United States.
Mr. Scott said he had read the petition and understood the allegations. He did not contest the alleged violation. Mr. Scott waived the preliminary hearing, and the parties consented to the jurisdiction of a magistrate judge for the revocation hearing.
On December 15, 2015, Mr. Scott appeared at the revocation hearing with Mr. Branom. Mr. Weldon appeared on behalf of the United States.
Mr. Scott admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of Mr. Scott's supervised release.
Mr. Scott's violation grade is Grade C, his criminal history category is III, and his underlying offense is a Class C felony. He could be incarcerated for up to 24 months. He could be ordered to remain on supervised release for up to 13 months, less any custodial time imposed. The United States Sentencing Guidelines call for five to 11 months in custody.
Mr. Branom requested that Mr. Scott receive a sentence below or at the low end of the guideline range. Mr. Branom noted that this is the longest period of time Mr. Scott has been on supervised release and was the most productive time in his life. Mr. Branom argued continued supervision would not be an efficient use of government resources and noted Mr. Scott can take advantage of services on the reservation after custody if he wants to. Mr. Weldon argued a sentence of 11 months of incarceration, followed by no supervision, would be appropriate. Mr. Weldon argued a sentence at the high end of the guideline range would be appropriate given the seriousness of the underlying offense and the government's concern that Mr. Scott is a danger to himself and to society when he is intoxicated.
Mr. Scott addressed the Court. He said he does not want to go back to prison and wants to return home to his family.
Mr. Scott's supervised release should be revoked because he admitted violating its conditions. Mr. Scott should be incarcerated for 8 months, with no supervised release to follow. A midrange sentence will sufficient but will not be greater than necessary. Based on the parties' recommendation and Mr. Scott's apparent inability to comply with the terms of supervised release, the undersigned concludes continued supervision is not appropriate in this case.
Mr. Scott was advised that the above sentence would be recommended to Judge Morris. The Court reminded him of his right to object to these Findings and Recommendations within 14 days of their issuance. The undersigned explained that Judge Morris would consider Mr. Scott's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Scott's supervised release and what, if any, sanction to impose.
The undersigned
The undersigned
The parties may serve and file written objections to the Findings and Recommendations within 14 days of their entry, as indicated on the Notice of Electronic Filing. 28 U.S.C. § 636(b)(1). A district judge will make a de novo determination regarding any portion of the Findings and Recommendations to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district judge, and may waive the right to appear and allocute before a district judge.
[✓] admitted guilt to violation of condition(s) Preabmle; St. 1, 7; Sp. 1, 2 of the term of supervision.
[ ] was found in violation of condition(s) after denial of guilt.
The defendant is adjudicated guilty of these violations:
The defendant is sentenced as provided in pages 2 through 4 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
[ ] The defendant has not violated condition(s) _____________ and is discharged as to such violation(s) condition.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total total term of:
8 months.
[✓] The court makes the following recommendations to the Bureau of Prisons:
[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
I have executed this judgment as follows:
Defendant delivered on ___________________________________ to _______________________________ at _____________________________________ with a certified copy of this judgment.
Upon release from imprisonment, the defendant shall be on supervised release for a term of: 0 months.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
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.
[ ] The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)
[ ] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if
[ ] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is be a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The defendant is hereby sentenced to probation for a term of:
The defendant shall not commit another federal, state, or local crime. 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 placement on probation and at least two periodic drug tests thereafter as determined by the court.
[ ] The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)
[ ] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
[ ] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)
[ ] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is be a condition of probation that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant shall comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4) the defendant shall support his or her dependents and meet other family responsibilities;
5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;
6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and
13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
The defendant must pay the following total criminal monetary penalties under the schedule of payments set forth on Sheet 6.
[ ] The determination of restitution is deferred until ___________ An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.
[ ] The defendant shall make restitution (including community restitution) to the following payees in the amount listed below.
[ ] Restitution amount ordered pursuant to plea agreement $ ___________________
[ ] The defendant must pay interest on restitution or a fine more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
[ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that:
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as follows:
Unless the court has expressly ordered otherwise in the special instruction above, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
[ ] Joint and Several
[ ] The defendant shall pay the cost of prosecution.
[ ] The defendant shall pay the following court cost(s):
[ ] The defendant shall forfeit the defendant's interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.
