FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE
JOHN JOHNSTON, Magistrate Judge.
I. Synopsis
The United States accused Mr. Jackson of violating his conditions of supervised release by (1) failing to appear for random urinalysis testing, (2) testing positive for methamphetamine, (3) failing to make payments toward his restitution, and (4) failing to appear for his transport to substance abuse treatment. He admitted to the violations. Mr. Jackson's supervised release should be revoked. He should be sentenced to nine months in custody, with twenty-seven months of supervised release to follow. His supervised release should be transferred to the District of North Dakota, and he should receive credit for time served since his arrest there on November 17, 2016.
II. Status
Mr. Jackson pleaded guilty to Arson within Special Maritime or Territorial Jurisdiction in July 2010. (Doc. 95.) United States District Judge Sam Haddon sentenced him to forty-five months in custody, with sixty months of supervised release to follow, and ordered him to pay $220,231.00 in restitution. (Doc. 105.) He began his first term of supervised release in October 2013.
United States District Judge Brian Morris revoked Mr. Jackson's supervised release in February 2014 because he quit his job, left his listed address without informing his probation officer, used drugs and alcohol, and failed to call his probation officer as directed. (Doc. 119.) Judge Morris sentenced him to five months in custody, with fifty-five months of supervised release to follow. (Doc. 119.) He began his second term of supervised release in August 2014.
Judge Morris revoked Mr. Jackson's supervised release again in May 2015 because he consumed bath salts and methamphetamine on two occasions. Judge Morris sentenced him to nine months in custody, with thirty-six months of supervised release to follow. (Doc. 152.) He began his current term of supervised release on February 19, 2016.
First Petition
The United States Probation Office filed a Petition for Warrant for Offender Under Supervision on June 1, 2016, accusing Mr. Jackson of violating the conditions of his supervised release by (1) failing to appear for random urinalysis testing, (2) testing positive for methamphetamine, and (3) failing to make payments toward his restitution. (Doc. 183.) The Court conducted an initial appearance and continued the revocation hearing to allow Mr. Jackson time to demonstrate his willingness to adopt a substance-free lifestyle by completing drug treatment at the Montana Chemical Dependency Center (MCDC). (Doc. 187.) Mr. Jackson failed to appear for his transport to MCDC on July 12, 2016. (Doc. 195.)
Second petition
The Probation Office filed an updated petition asking the Court to revoke Mr. Jackson's supervised release on July 13, 2016. (Id.) The Probation Office accused him of violating his conditions of supervised release by failing to appear for his transport to substance abuse treatment in addition to the three violations contained in the June 2016 petition. (Id.) Judge Morris issued a warrant for his arrest on the same day. (Doc. 196.) Mr. Jackson was arrested in North Dakota on November 17, 2016. (Doc. 217.)
Initial appearance
Mr. Jackson appeared before the undersigned on December 21, 2016, in Great Falls, Montana. Federal Defender Evangelo Arvanetes accompanied him. Assistant United States Attorney Jeffery Starnes represented the United States.
Mr. Jackson 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. Jackson admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of his supervised release.
Mr. Jackson's violation grade is Grade C, his criminal history category is I, and his underlying offense is a Class B felony. He could be incarcerated for up to thirty-six months. He could be ordered to remain on supervised release for sixty months, less any custody time imposed. The United States Sentencing Guidelines call for three to nine months in custody.
Mr. Arvanetes recommended a sentence above the guideline range with no supervised release to follow. Mr. Starnes recommended a sentence of six months in custody, with supervised release to follow in the District of North Dakota. Mr. Jackson addressed the Court and stated that he is sober now and wants to be in North Dakota with his family.
III. Analysis
Mr. Jackson's supervised release should be revoked because he admitted violating its conditions. He should be sentenced to nine months in custody, with twenty-seven months of supervised release to follow. His supervised release should be transferred to North Dakota, and he should receive credit for time served since his arrest in there on November 17, 2016. 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. Jackson 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:
Ryan Sidney Jackson violated his conditions of supervised release by (1) failing to appear for random urinalysis testing, (2) testing positive for methamphetamine, (3) failing to make payments toward his restitution, and (4) failing to appear for his transport to substance abuse treatment.
The Court RECOMMENDS:
The district court should enter the attached Judgment, revoking Mr. Jackson's supervised release and committing him to the custody of the United States Bureau of Prisons for nine months, with twenty-seven months of supervised release to follow. His supervised release should be transferred to the District of North Dakota, and he should receive credit for time served since his arrest there on November 17, 2016.
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)
RYAN SIDNEY JACKSON
Case No. CR 10-24-GF-BMM-01
USM No. 10815-046
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) Failure to participate in substance abuse testing 05/30/2016
2 (Standard condition 7) Use of controlled substance 04/29/2016
3 (Special condition 9) Failure to pay restitution 05/31/2016
4 (Special condition 1) Failure to complete substance abuse treatment 07/13/2016
The defendant is sentenced as provided in pages 2 through 7 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.: 3315 _____________________________________________
Date of Imposition of Judgment
Defendant's Year of Birth: 1967
_____________________________________________
Signature of Judge
City and State of Defendant's Residence:
Box Elder, 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:
9 months
[check;] The court makes the following recommendations to the Bureau of Prisons:
Mr. Jackson should receive credit for time served sine his arrest in North Dakota on November 17, 2016.
[check;] 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: 27 months
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.
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.
Defendant's Signature ____________________________ Date __________________
SPECIAL CONDITIONS OF SUPERVISION
1. 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.
2. The defendant shall participate in a program for mental health treatment as deemed necessary by the United States Probation Office, until such time as the defendant is released from the program by the probation office. The defendant Is to pay part or all of the cost of this treatment, as determined by the United States Probation Office.
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 office. The defendant is to pay part or all of the cost of this treatment, as determined by the United States Probation Office.
4. 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 Office.
5. 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. 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.
6. The defendant shall not ingest or inhale any toxic substance such as, but not limited to, synthetic marijuana and/or synthetic stimulants that is not manufactured for human consumption, for the purpose of altering his mental or physical state.
7. The defendant shall have no contact with victims in the instant offense.
8. The defendant shall comply with Violent Offender Registration requirements for convicted offenders in any state in which the defendant resides.
9. IT IS ORDERED THAT the defendant shall pay restitution in the amount of $220,231 jointly and severally with co-defendant Tyrell John T.J. Connor at a rate of $500 per month, or as otherwise directed by United States Probation. Payment shall be made to the Clerk, United States District Court, Missouri River Courthouse, 125 Central Ave West, Suite 110, Great Falls, MT 59404 and shall be disbursed to:
Samuel and Leslie Boor ($27,855);
Farmers Union Insurance ($192,376)
Attention: Claim No. 201-01-233
P.O. Box 9
Wolf Point, MT 59201
Case Number 4:10CR00024, Document 119 (filed March 17, 2014, page 4 of 4
CRIMINAL MONETARY PENALTIES
The defendant must pay the following total criminal monetary penalties under the schedule of payments set forth on Sheet 6.
Assessment JVTA Assessment* Fine Restitution
TOTALS $ $ $ $ 220,231.00
[ ] 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.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid.
Name of Payee Total Loss** Restitution Ordered Priority or Percentage
Samuel and Leslie Boor $27,855.00
Farmers Union Insurance $192,376.00
Attn: Claim No. 201-01-233
P.O. Box 9
Wolf Point, MT 59201
TOTALS $ 0.00 $ 220,231.00
[ ] 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:
[ ] the interest requirement is waived for the [ ] fine [✓] restitution.
[ ] the interest requirement for the [ ] fine [ ] restitution is modified as follows:
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as follows:
A [ ] Lump sum payment of $ ______________ due immediately, balance due
[ ] not later than _________________________, or
[ ] in accordance with [ ] C, [ ] D, [ ] E, or [ ] F below); or
B [ ] Payment to begin immediately (may be combined with [ ] C, [ ] D, or [ ] F below); or
C [ ] Payment in equal _________ (e.g., weekly, monthly, quarterly) installments of $ _____________ over a period of _______________ (e.g., months or years), to commence _____________ (e.g., 30 or 60 days) after the date of this judgment; or
D [ ] Payment in equal _________ (e.g., weekly, monthly, quarterly) installments of $ _____________ over a period of _______________ (e.g., months or years), to commence _____________ (e.g., 30 or 60 days) after release from imprisonment to term of supervision; or
E [ ] Payment during the term of supervised release will commence within ___________ (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay.
F [✓] Special instructions regarding the payment of criminal monetary penalties:
Restitution shall be paid as directed on pages 4 and 5. While incarcerated, criminal monetary penalty payments are due during imprisonment at the rate of not less than $25 per quarter, and payment shall be through the Bureau of Prisons' Inmate Financial Responsibility Program. Criminal monetary payments shall be made to the Clerk, United States District Court, Missouri River Courthouse, 125 Central Avenue West, Suite 110, Great Falls, MT 59404, **Restitution Ryan Sidney Jackson **.
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
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Joint and Several Amount and corresponding payee, if appropriate.
Defendant Ryan Sidney Jackson (CR 10-24-GF-BMM-01)
Co-defendant Tyrell John T.J. Connor (CR 10-24-GF-BMM-02)
Total Amount: $220,231 Joint/Several: $220,231
[ ] 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) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and
