FINDINGS OF FACT AND RECOMMENDATION ON PLEA OF TRUE BEFORE THE UNITED STATES MAGISTRATE JUDGE
KEITH F. GIBLIN, Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b) and the Local Rules for the District Court, Eastern District of Texas, the District Court referred this matter for hearing and the submission of findings of fact and a report and recommendation pursuant to 18 U.S.C. §§ 3401(i) and 3583(e). The United States alleges that Defendant, Robert Lee Poole, violated conditions of supervised release imposed by United States District Judge Julie E. Carnes. The United States Probation Office filed its First Amended Petition for Warrant or Summons for Offender Under Supervision (doc. #5) requesting the revocation of the defendant's supervised release.
The Court conducted a hearing on August 23, 2016, in accordance with Federal Rules of Criminal Procedure 11, 32 and 32.1. Defendant was present and represented by counsel at the hearing. Having heard the evidence, this court factually finds that the defendant has violated conditions of supervision and recommends that such violation warrants the revocation of his supervised release.
After conducting the proceeding in the form and manner prescribed by Federal Rule of Criminal Procedure 11, the Court finds:
a. That Defendant, after consultation with counsel of record, has knowingly, freely and voluntarily consented to the administration of the plea of true in this cause by a United States Magistrate Judge subject to a final approval and imposition of sentence by the District Court.
b. That Defendant is fully competent and capable of entering an informed plea, that Defendant is aware of the nature of the charges and the consequences of the plea, that his plea of true is a knowing and voluntary plea, not the result of force or threats, and that the plea is supported by an independent evidentiary basis in fact establishing each of the essential elements of the conduct.
STATEMENT OF REASONS
A. Procedural History
On March 19, 1998, the Honorable Julie E. Carnes of the Northern District of Georgia sentenced the defendant after he pled guilty to the offense of Attempt to Escape, a Class D felony. The Court sentenced the defendant to 44 months imprisonment to be followed by a term of 3 years of supervised release subject to the standard conditions of release, plus special conditions to include a $100 special assessment. On March 5, 2013, Mr. Poole completed his period of imprisonment and began service of the supervision term.
On September 30, 2013, the Court in the Northern District of Georgia transferred jurisdiction to the District of Kansas. Jurisdiction was then transferred to the Eastern District of Texas on July 28, 2015, and the proceeding has been reassigned to United States District Judge Marcia A. Crone.
B. Allegations in Petition
The United States alleges that the defendant violated the following mandatory condition of supervised release:
The defendant shall refrain from any unlawful use of a controlled substance.
On February 13, 2015, Mr. Poole submitted a urine specimen that was positive for marijuana. On that same date, he signed an admission form, admitting to the use of marijuana.
C. Evidence presented at Hearing
At the hearing, the Government proffered evidence establishing that the defendant submitted a urine specimen on February 13, 2015, which tested positive for marijuana and Mr. Poole also admitted to using marijuana as alleged in the petition. The Government also established that this violated the condition set forth in the judgment of conviction which prohibited the defendant from using controlled substances while on supervised release.
Defendant, Robert Poole, offered a plea of true to the allegation in the petition. Specifically, he agreed with the evidence presented and pled true to the allegation that he used a controlled substance in violation of his supervision conditions in this case.
D. Sentencing Guidelines; Findings and Recommended Disposition
The allegations, supporting evidence and plea of true warrant revocation of supervised release. See 18 U.S.C. § 3583(e)(3). The Court factually finds by a preponderance of the evidence that the defendant violated a mandatory condition of his supervised release by using a controlled substance while on supervised release.
If the Court finds that Mr. Poole violated his supervision conditions in the manner stated above, this will constitute a Grade C violation under U.S.S.G. § 7B1.1(a). Upon finding a Grade C violation, the Court may revoke the defendant's supervised release. See U.S.S.G. § 7B1.3(a)(2). Based upon the defendant's criminal history category of VI and the Grade C violation, the Sentencing Guidelines suggest a sentence of imprisonment for a period ranging from 8 to 14 months. See U.S.S.G. § 7B1.4(a). Because the original offense of conviction in this case was a Class D felony, the statutory maximum imprisonment term upon revocation is two years. See 18 U.S.C. § 3583(e)(3).
The Fifth Circuit states that Chapter 7 of the Sentencing Guidelines regarding the revocation of supervised release is advisory only. See United States v. Cade, 279 F.3d 265, 271 n.2 (5th Cir. 2002) (citing United States v. Montez, 952 F.2d 854, 859 (5th Cir. 1992); United States v. Headrick, 963 F.2d 777, 782 (5th Cir. 1992)). Because Chapter 7 was promulgated as an advisory policy statement and there are no applicable guidelines for sentencing after revocation of supervised release1, the Court may impose a greater or lesser sentence upon revocation. United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir. 2001). Further, a sentence imposed for revocation will be upheld unless it is in violation of the law or plainly unreasonable. Id. See also United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997) (citations omitted).
Here, the evidence and the defendant's own admission supports a finding that he violated his supervision conditions. The Court, therefore, finds by a preponderance of the evidence that the defendant committed a Grade C violation of his supervision conditions by using a controlled substance. The defendant knowingly and voluntarily pled true to the violation, agreed with the Court's recommended sentence for that violation, and waived his right to allocute before the District Court. See Consent to Revocation of Supervised Release and Waiver of Right to Be Present and Speak at Sentencing.
Therefore, based upon the plea of true, the parties' agreement, and the evidence presented in this case, the undersigned magistrate judge recommends that the District Court accept the plea of true and revoke Defendant's supervised release. The undersigned magistrate further recommends that the District Court order Defendant to serve a term of fourteen (14) months imprisonment in this cause, with no further term of supervision to follow in this case. The Court would further recommend that this term of imprisonment be imposed to run concurrently with the term of imprisonment imposed for the revocation in case number 1:91-CR-72 here in the Eastern District of Texas and consecutively to the sentence Mr. Poole recently received for a new federal crime in cause number 9:15-CR-21, also filed here in the Eastern District of Texas.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error of unobjected-to factual findings and legal conclusions accepted by the district court, see Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). The constitutional safeguards afforded by Congress and the courts require that, when a party takes advantage of his right to object to a magistrate's findings or recommendation, a district judge must exercise its nondelegable authority by considering the actual evidence and not merely by reviewing and blindly adopting the magistrate judge's report and recommendation. See Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983); United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981) (per curiam).
