FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
The United States accused Mr. Brauhn of violating his conditions of supervised release by (1) consuming alcohol and (2) testing positive for methamphetamine. He admitted to the violations. Mr. Brauhn's supervised release should be revoked. He should be sentenced to thirteen months of custody, with no supervised release to follow.
II. Status
Mr. Brauhn pleaded guilty to Burglary in February 2013. (Doc. 29) Chief District Judge for the District of Montana Dana Christensen sentenced him to twenty-four months in custody with thirty-six months of supervised release to follow. (Doc. 36) He began his current term of supervised release on October 17, 2014.
The United States Probation Office filed a Report on Offender Under Supervision on November 23, 2015, addressing Mr. Brauhn's use of methamphetamine and alcohol and his failure to turn in monthly reports. (Doc. 40)
The Probation Office filed a Petition for Warrant for Offender Under Supervision on April 26, 2016, because Mr, Brauhn failed to attended chemical dependency treatment and used methamphetamine and alcohol on several occasions. (Doc. 41) The government moved to dismiss the petition. Mr Brauhn then immediately entered inpatient treatment at Crystal Creek Lodge in Browning, Montana. (Doc. 48)
The Probation Office filed a second Report on Offender Under Supervision on July 26, 2016, addressing Mr. Brauhn's methamphetamine use. (Doc. 49) He was allowed to continue his supervised release and entered the Connections Corrections Program. He completed the program on October 10, 2016. (Doc. 50)
Petition
The Probation Office filed a petition asking the Court to revoke Mr. Brauhn's supervised release on December 5, 2016. (Id.) The Probation Office accused him of violating his conditions of supervised release by (1) consuming alcohol and (2) testing positive for methamphetamine. (Id.) United States District Judge Brian Morris issued a warrant for his arrest on the same day. (Doc. 51)
Initial appearance
Mr. Brauhn appeared before the undersigned on December 14, 2016, in Great Falls, Montana. Federal Defender Evangelo Arvanetes accompanied him. Assistant United States Attorney Ryan Weldon represented the United States.
Mr. Brauhn said he had read the petition and understood the allegations. He waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.
Revocation hearing
Mr. Brauhn admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of his supervised release.
Mr. Brauhn'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 twenty-four months. He could be ordered to remain on supervised release for thirty-six months, less any custody time imposed. The United States Sentencing Guidelines call for five to eleven months in custody.
Mr. Arvanetes recommended a sentence above the guideline range with no supervised release to follow. Mr. Weldon recommended a sentence of thirteen months in custody with no supervised release to follow. Mr. Brauhn addressed the Court and stated that he grew up in Browning, Montana, and that the temptation to use drugs is always there. He said he plans to live in Washington upon his release.
III. Analysis
Mr. Brauhn's supervised release should be revoked because he admitted violating its conditions. He should be sentenced to thirteen months in custody, with no supervised release to follow. This sentence would be sufficient given the serious violation of the Court's trust, but it would not be greater than necessary.
IV. Conclusion
Mr. Brauhn 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 his objection, if it is filed within the allotted time, before making a final determination on whether to revoke his supervised release and what, if any, sanction to impose.
The Court FINDS:
Brandon Lee Brauhn violated his conditions of supervised release by (1) consuming alcohol and (2) testing positive for methamphetamine.
The Court RECOMMENDS:
The district court should enter the attached Judgment, revoking Mr. Brauhn's supervised release and committing him to the custody of the United States Bureau of Prisons for thirteen months, with no supervised release to follow.
NOTICE OF RIGHT TO OBJECT TO FINDINGS AND RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
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.
UNITED STATES DISTRICT COURT
District of Montana
UNITED STATES OF AMERICA Judgment in a Criminal Case
v. (For Revocation of Probation or Supervised Release)
BRANDON LEE BRAUHN
Case No. CR 12-99-GF-BMM-01
USM No. 12192-046
Evangelo Arvanetes
______________________________________________________________
Defendant's Attorney
THE DEFENDANT:
[✓] admitted guilt to violation of condition(s) as listed below of the term of supervision.
[ ] was found in violation of condition(s) _______________ after denial of guilt.
The defendant is adjudicated guilty of these violations:
Violation Number Nature of Violation Violation Ended
1 (Special condition 4) Use of alcohol 12/01/2016
2 (Standard condition 7) Use of controlled substance 12/01/2016
The defendant is sentenced as provided in pages 2 through 3 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.
Last Four Digits of Defendant's Soc. Sec. No.: 8630 __________________________________________________
Date of Imposition of Judgment
Defendant's Year of Birth: 1989 __________________________________________________
Signature of Judge
City and State of Defendant's Residence:
Cut Bank, MT
Brian Morris United States District Judge
__________________________________________________
Name and Title of Judge
__________________________________________________
Date
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:
13 months, with no supervision to follow.
[ ] 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:
[ ] at __________________________ [ ] a.m. [ ] p.m. on ______________________________.
[ ] as notified by the United States Marshal.
[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
[ ] before 2 p.m. on ___________________________.
[ ] as notified by the United States Marshal.
[ ] as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on ________________________________ to _______________________________ at ______________________________ with a certified copy of this judgment.
_______________________________________
UNITED STATES MARSHAL
By ____________________________________
DEPUTY UNITED STATES MARSHAL
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of: none.
MANDATORY CONDITIONS
1. You must not commit another federal, state or local crime.
2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawful use of a controlled substance. You must 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 you pose a low risk of future substance abuse. (check if applicable)
4. [ ] You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable) 5. [ ] You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
6. [ ] You must participate in an approved program for domestic violence. (check if applicable) You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.
This must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.
