FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
The United States accused Mr. Weatherwax of violating his conditions of supervised release by (1) failing to report for outpatient chemical dependency treatment, (2) failing to report for urine testing, and (3) failing to report to his probation officer. Mr. Weatherwax admitted to the violations. His supervised release should be revoked, and he should be sentenced to five months in custody, with no supervised release to follow.
II. Status
Mr. Weatherwax pleaded guilty to Tampering with a Witness-Victim-or an Informant on November 12, 2014. (Doc. 103.) United States District Judge Brian Morris sentenced him to thirty-six months in custody followed by twelve months of supervised release on November 25, 2016. (Doc. 115.) Mr. Weatherwax began his current term of supervised release on May 2, 2016.
The United States Probation Office filed a Report of Offender Under Supervision on October 3, 2016. (Doc. 121.) The report outlined Mr. Weatherwax's use of marijuana and alcohol. (Id.) The Probation Office filed a second report on October 20, 2016, outlining his use of methamphetamine. (Doc. 122.)
Petition
The Probation Office filed a Petition for Warrant for Offender Under Supervision on November 22, 2016. (Doc. 123.) The Probation Office accused Mr. Weatherwax of violating the conditions of his probation by (1) failing to report for outpatient chemical dependency treatment, (2) failing to report for urine testing, and (3) failing to report to his probation officer. (Id.) Judge Morris issued a warrant for Mr. Weatherwax's arrest on the same day. (Doc. 123.)
Initial appearance
Mr. Weatherwax appeared before the undersigned for an initial appearance on November 28, 2016. Federal Defender Hank Branom accompanied him. Assistant United States Attorney Bryan Dake represented the United States.
Mr. Weatherwax said he had read the petition and understood the allegations. He waived the preliminary hearing. The parties consented to proceed with the revocation hearing before the undersigned. Mr. Weatherwax moved the Court to continue the hearing until a later date. The Court continued the hearing until December 5, 2016.
Revocation hearing
Mr. Weatherwax appeared before the undersigned for a revocation hearing on December 5, 2016. Mr. Weatherwax admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of his supervised release.
Mr. Weatherwax's violation grade is Grade C. His criminal history category is V. His underlying offense is a Class E felony. He could be incarcerated for up to twelve months. He could be ordered to remain on supervised release for twelve months, less any custody time imposed. The United States Sentencing Guidelines call for seven to thirteen months in custody.
Mr. Branom stated that Mr. Weatherwax has struggled with sobriety for twenty years and requested a sentence of four months in custody. Mr. Dake recommended a sentence of seven months in custody with no supervised release to follow. Mr. Weatherwax exercised his right of allocution stating he wants to go home and spend time with his fiancé and his dogs.
III. Analysis
Mr. Weatherwax's supervised release should be revoked because he admitted violating its conditions. He should be sentenced to five 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. Weatherwax 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. Weatherwax's 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:
Mark John Weatherwax violated the conditions of his supervised release by (1) failing to report for outpatient chemical dependency treatment, (2) failing to report for urine testing, and (3) failing to report to his probation officer.
The Court RECOMMENDS:
The district court should enter the attached Judgment, revoking Mr. Weatherwax's supervised release and committing him to the custody of the United States Bureau of Prisons for five 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)
MARK JOHN WEATHERWAX
Case No. CR 14-03-GF-BMM-02
USM No. 02374-046
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 (Special condition 6) Failure to participate in substance abuse treatment 11/16/2016
2 (Special condition 3) Failure to participate in substance abuse testing 11/15/2016
3 (Standard condition 2) Failure to report to USPO as directed 11/21/2016
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.: 3003 _____________________________________________
Date of Imposition of Judgment
Defendant's Year of Birth: 1969 _____________________________________________
Signature of Judge
City and State of Defendant's Residence:
Browning, 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:
_____5 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.
