FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
The United States accused Mr. After Buffalo of violating his conditions of supervised release by (1) failing to report to his probation officer as directed, (2) failing to notify his probation officer prior to a change in residence and (3) failing to participate in substance abuse treatment. He admitted to the violations. Mr. After Buffalo's supervised release should be revoked. He should be sentenced to six months of custody, with no supervised release to follow. The Court recommends that Mr. After Buffalo serve his sentence in the Federal Correctional Institution in Herlong, California.
II. Status
Mr. After Buffalo pleaded guilty to Burglary in August 2013. (Doc. 69.) Chief District Judge for the District of Montana Dana Christensen sentenced him to 12 months and one day in prison, and 36 months of supervised release. (Doc. 85.) Mr. After Buffalo began his first term of supervised release on March 22, 2014. On December 30, 2014, Mr. After Buffalo met with his probation officer to address non-compliance behavior after Mr. After Buffalo tested positive for marijuana. He was subsequently placed in chemical dependency treatment. On March 17, 2015, after further noncompliance issues, Mr. After Buffalo attended a Non-Compliance Hearing with his probation officer and Supervising United States Probation Officer Kevin Heffernan. Mr. After Buffalo was redirected to chemical dependency treatment and warned that any further noncompliance would result in proceedings before this Court. (Doc. 104.)
In August 2015, United States District Judge Brian Morris revoked Mr. After Buffalo's supervised release because he violated its conditions by using alcohol. Mr. After Buffalo was sentenced to three months of custody and thirty-three months of supervised release. (Doc. 113.) Mr. After Buffalo's next term of supervision began on October 6, 2015. (Doc. 125.)
Judge Morris revoked Mr. After Buffalo's supervised release again on February 2, 2016, because he consumed alcohol and failed to notify is probation officer of his contact with law enforcement. (Doc. 138.) Judge Morris sentenced him to three months in custody followed by thirty months of supervised release. He began his current term of supervised release on October 1, 2016.
Mr. After Buffalo successfully completed six months of Public Law at the Great Falls Prerelease Center. On October 24, 2016, the United States Probation Office filed a Report on Offender Under Supervision stating that Mr. After Buffalo admitted to using methamphetamine and alcohol. (Doc. 150.)
Petition
The Probation Office filed a petition asking the Court to revoke Mr. After Buffalo's supervised release on November 3, 2016. (Doc. 151.) The Probation Office accused Mr. After Buffalo of violating his conditions of supervised release by (1) failing to report to his probation officer as directed, (2) failing to notify his probation officer prior to a change in residence and (3) failing to participate in substance abuse treatment. (Id.) Judge Morris issued a warrant for Mr. After Buffalo's arrest the same day. (Doc. 152.)
Initial appearance
Mr. After Buffalo appeared before the undersigned on December 6, 2016, in Great Falls, Montana. Federal Defender Hank Branom accompanied him. Assistant United States Attorney Ryan Weldon represented the United States.
Mr. After Buffalo said he had read the petition and understood the allegations. Mr. After Buffalo waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.
Revocation hearing
Mr. After Buffalo admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of his supervised release.
Mr. After Buffalo's violation grade is Grade C, his criminal history category is I, 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 months, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Branom recommended a sentence of four to six months of custody. Mr. Weldon recommended a sentence of nine months in custody, with no supervised release to follow. Mr. After Buffalo addressed the Court and stated that he knows he has been associating with the wrong people and would like to relocate to Billings or Missoula.
III. Analysis
Mr. After Buffalo's supervised release should be revoked because he admitted violating its conditions. Mr. After Buffalo should be sentenced to six months in custody, with no supervised release to follow. The Court recommends that Mr. After Buffalo serve his sentence in the Federal Correctional Institution in Herlong, California. 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. After Buffalo 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. After Buffalo's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. After Buffalo's supervised release and what, if any, sanction to impose.
The Court FINDS:
Dustin Jay After Buffalo violated his conditions of supervised release by (1) failing to report to his probation officer as directed, (2) failing to notify his probation officer prior to a change in residence and (3) failing to participate in substance abuse treatment.
The Court RECOMMENDS:
The district court should enter the attached Judgment, revoking Mr. After Buffalo's supervised release and committing Mr. After Buffalo to the custody of the United States Bureau of Prisons for six months, with no supervised release to follow. Mr. After Buffalo should serve this sentence in the Federal Correctional Institution in Herlong, California.
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)
DUSTIN JAY AFTER BUFFALO
Case No. CR 13-52-GF-BMM-03
USM No. 12451-046
R. Hank Branom
_________________________________________________
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) count(s) _________________ after denial of guilt.
The defendant is adjudicated guilty of these violations:
Violation Number Nature of Violation Violation Ended
1 (Standard condition 2) Failure to report to USPO as directed 10/31/2016
2 (Standard condition 6) Failure to notify USPO prior to change in residence 10/31/2016
3 (Special condition 4) Failure to participate in substance abuse treatment 11/01/2016
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.: 8120 _____________________________________________
Date of Imposition of Judgment
Defendant's Year of Birth: 1991
_____________________________________________
City and State of Defendant's Residence: Signature of Judge
Great Falls, 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:
6 months, with no term of 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 the location 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.
