JOHN JOHNSTON, Magistrate Judge.
Mr. Healy was accused of violating his conditions of supervised release by using alcohol and committing a new crime. He admitted that he used alcohol and that he was arrested for Abuse of a Family Member, but he denied the factual allegations regarding his arrest. Mr. Healy' supervised release should be revoked. He should be placed in custody for eight months, with 12 months supervised release to follow.
Mr. Healy pleaded guilty in 2008 to Felon in Possession of a Firearm. (Doc. 22.) The offense involved Mr. Healy threatening to shoot several acquaintances and actually shooting two pet dogs, while intoxicated. (Doc. 19.) He was sentenced to 71 months incarceration, with three years of supervised release to follow. (Doc. 30.) He began his first term of supervised release on January 4, 2014. (Doc. 32.)
Mr. Healy's supervised release was revoked on June 11, 2014, because he violated its conditions by consuming alcohol and possessing a weapon. He was sentenced to 12 months and one day of custody and 24 months of supervised release. (Doc. 40.) His second term of supervised release began on March 25, 2015. (Doc. 42.)
On February 2, 2016, the United States Probation Office filed a petition asking the Court to revoke Mr. Healy's supervised release. The petition accused Mr. Healy of consuming alcohol on August 13, 2015, and January 30, 2016, in violation of Special Condition 3 of his supervised release. The petition alleged Mr. Healy violated the Preamble to Standard Conditions of supervised release by committing a new crime on January 30, 2016. (Doc. 42.) Based on the petition, United States District Judge Brian Morris issued a warrant for Mr. Healy's arrest. (Doc. 43.)
Mr. Healy appeared before the undersigned on February 11, 2016, in Great Falls, Montana. Mr. Healy was accompanied at the initial appearance by Federal Defender Evangelo Arvanetes. Assistant United States Attorney Ryan Weldon represented the United States.
Mr. Healy said he read the petition and understood the allegations. Mr. Weldon warned that Mr. Healy could be incarcerated for up to 24 months if his supervised release is revoked. The undersigned explained Mr. Healy's rights, including the right to a revocation hearing before United States District Judge Brian Morris, who is presiding over the case.
Mr. Arvanetes said Mr. Healy would waive the preliminary hearing and was prepared to proceed with the revocation hearing before the undersigned. Mr. Healy and Mr. Weldon both consented to the jurisdiction of a magistrate judge. The hearing commenced.
Mr. Healy appeared at the revocation hearing with Mr. Arvanetes. Mr. Weldon appeared for the United States.
Mr. Healy admitted that he consumed alcohol and was arrested in violation of conditions of his supervised release, as alleged in the petition. He denied the factual allegations regarding his arrest. The undersigned found the admission sufficient to establish violations and believes the violations warrant revocation of Mr. Healy's supervised release.
Mr. Healy's violation is Grade C, his criminal history category is IV, 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 24 months, less any custodial time imposed. The United States Sentencing Guidelines call for six to 12 months in custody. U.S. Guideline Manual, Ch. 7. Mr. Weldon and Mr. Arvanetes agreed with those calculations.
Mr. Arvanetes requested a sanction of six to nine months of incarceration with no term of supervision to follow or of fewer than six months of incarceration with 12 months of supervision to follow. Mr. Arvanates said Mr. Healy's violations all stem for his use of alcohol. Mr. Healy addressed the Court and said he does not want to remain on supervised release.
Ms. Weldon argued for a longer custodial period. He noted that Mr. Healy's violations consisted of destructive conduct under the influence of alcohol, which is a troubling given Mr. Healy's underlying offense. Mr. Weldon said the government is most concerned about the alleged strangulation. Because Mr. Healy did not admit to the strangulation, Mr. Weldon requested that Mr. Healy be sentenced to 24 months of incarceration with no supervision to follow or to a guideline custodial sentence with continued supervision. Mr. Weldon offered to present evidence to prove the strangulation allegation.
Mr. Healy's supervised release should be revoked because he admitted to serious violations of the conditions. He should be incarcerated for eight months, with 12 months of supervised release to follow. This sanction will be sufficient given the seriousness of the violations but will not be greater than necessary.
Mr. Healy's history shows him to be a dangerous, destructive person when he does not obey the conditions of his release and uses alcohol. A significant sanction will encourage him to comply with those conditions in the future. Continued supervision is appropriate. Supervised release will discourage Mr. Healy from abusing alcohol and will offer the community some protection from future outbursts. The conditions read in open court during the revocation hearing should be imposed.
Mr. Healy was advised that the above sentence would be recommended to Judge Morris. He was reminded 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. Healy' objection, if it is filed within the alloted time, before making a final determination on whether to revoke Mr. Healy'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 conditions)
[] was found in violation of conditions) ________________ after denial of guilt.
The defendant is adjudicated guilty of these violations:
The defendant is sentenced as provided in pages 2 through
[] 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 clays 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 term of:
Eight months.
[] The court makes the following recommendations to the Bureau of Prisons:
[✓] The defendant is remanded to the custody of the United States Marshal.
[] The defendant shall surrender to the United States Marshal for this district:
[] 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: 12 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 thug 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 in a manner and frequency directed by the court or probation officer;
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 anti shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.
1. The defendant shall abstain from the consumption of alcohol and shall not enter establishments where alcohol is the primary item of sale. This condition supersedes standard condition number 7 with respect to alcohol consumption only.
2. The defendant shall participate in substance abuse testing, to include not more than 104 urinalysis tests and not more than 104 breathalyzer tests annually during the period of supervision. The defendant is to pay all or part of the costs of testing as determined by the United States Probation Officer.
3. The defendant shall participate in and complete a program of substance abuse treatment as approved by the United States Probation Office, until the defendant is released from the program by the probation officer. The defendant is to pay part or all of the cost of this treatment, as determined by the United States Probation Officer.
4. The defendant shall participate in a program for mental health treatment as deemed necessary by the United States Probation Officer, until such time as the defendant is released from the program by the probation officer. The defendant is to pay part or all of the cost of this treatment, as determined by the United States Probation Officer.
5. The defendant shall submit his person, residence, vehicles, and papers, to a search, with or without a warrant by any probation officer based on reasonable suspicion of contraband or evidence in violation of a condition of release. Failure to submit to search may be grounds for revocation. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The defendant shall allow seizure of suspected contraband for further examination.
6. The defendant shall not purchase, possess, use, distribute or administer marijuana, or obtain or possess a medical marijuana card or prescription. This condition supersedes standard condition number 7 with respect to marijuana only.
7. The defendant shall not ingest or inhale any toxic substances such as, but not limited to, synthetic marijuana and/or synthetic stimulants that are not manufactured for human consumption, for the purpose of altering their mental or physical state.
8. The defendant will provide the United States Probation Officer with any requested financial information and shall incur no new lines of credit without prior written approval of the United States Probation Officer.
9. The defendant shall comply with Violent Offender Registration requirements for convicted offenders in any state in which the defendant resides.
