REPORT AND RECOMMENDATION ON PETITION FOR WARRANT FOR OFFENDER UNDER SUPERVISION
ZACK HAWTHORN, Magistrate Judge.
Pending is a "Petition for Warrant or Summons for Offender Under Supervision" filed October 16, 2018, alleging that the Defendant, Nicholas S. Miller, violated his conditions of supervised release. This matter is referred to the undersigned United States magistrate judge for review, hearing, and submission of a report with recommended findings of fact and conclusions of law. See United States v. Rodriguez, 23 F.3d 919, 920 n.1 (5th Cir. 1994); see also 18 U.S.C. § 3401(i) (2000); E.D. Tex. Crim. R. CR-59.
I. The Original Conviction and Sentence
Miller was sentenced on December 1, 2015, before The Honorable Michelle Childs, of the District of South Carolina, after pleading guilty to the offense of Conspiracy to Defraud the United States, a Class D felony. This offense carried a statutory maximum imprisonment term of 5 years. The guideline imprisonment range, based on a total offense level of 10 and a criminal history category of V, was 21 to 27 months. Miller was subsequently sentenced to 15 months' imprisonment followed by a 3 year term of supervised release subject to the standard conditions of release, plus special conditions to include employment program, drug aftercare and a $100 special assessment.
II. The Period of Supervision
On December 30, 2016, Miller completed his period of imprisonment and began service of the supervision term. On March 5, 2018, supervision was revoked and Miller was sentenced to 6 months' imprisonment followed by a two-year term of supervised release.
III. The Petition
United States Probation filed the Petition for Warrant for Offender Under Supervision raising two allegations. The petition alleges that Miller violated the following conditions of release:
Allegation 1. The Defendant reside in a residential reentry center or similar facility, in a community corrections component, for a period of 180 days and shall observe the rules of the facility.
Allegation 2. The Defendant shall refrain from any unlawful use of a controlled substance. Defendant shall submit to one drug test within 15 days of release from imprisonment or placement on probation and at least two periodic drug tests thereafter, as directed by the probation officer.
IV. Proceedings
On October 11, 2018, the undersigned convened a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure to determine whether the Defendant violated conditions of supervised release, and the appropriate course of action for any such violations. The undersigned held a supplemental hearing on October 30, 2018, at which the Government announced that it was abandoning Allegation Two.
V. Principles of Analysis
According to Title 18 U.S.C. § 3583(e)(3), the court may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post-release supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than five years in prison if the offense that resulted in the term of supervised release is a Class A felony, more than three years if such offense is a Class B felony, more than two years in prison if such offense is a Class C or D felony, or more than one year in any other case. The original offense of conviction was a Class D felony, therefore, the maximum imprisonment sentence is 2 years.
According to U.S.S.G. § 7B1.1(a)1, if the court finds by a preponderance of the evidence that the Defendant violated conditions of supervision by failing to reside in a residential reentry center or similar facility, for a period of 180 days to commence upon release from confinement and shall observe the rules of that facility, the Defendant will be guilty of committing a Grade C violation. U.S.S.G. § 7B1.3(a)(2) indicates that upon a finding of a Grade C violation, the court may (A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision.
U.S.S.G. § 7B1.4(a) provides that in the case of revocation of supervised release based on a Grade C violation and a criminal history category of V, the policy statement imprisonment range is 7 to 13 months.
According to U.S.S.G. § 7B1.3(c)(2), where the minimum term of imprisonment determined under U.S.S.G. § 7B1.4 is more than six months but not more than ten months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in U.S.S.G. § 5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment.
U.S.S.G. § 7B1.3(c)(3) indicates in the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction is not recommended.
According to U.S.S.G. § 7B1.3(d), any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with a sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under U.S.S.G. § 7B1.4 and any such unserved period of community confinement, home detention, or intermittent confinement may be converted to an equivalent period of imprisonment.
In determining the Defendant's sentence, the court shall consider:
1. The nature and circumstance of the offense and the history and characteristics of the defendant; see 18 U.S.C. § 3553(a)(1);
2. The need for the sentence imposed: to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the Defendant with needed educational or vocational training, medical care, other corrective treatment in the most effective manner; see 18 U.S.C. §§ 3553 (a)(2)(B)-(D);
3. Applicable guidelines and policy statements issued by the Sentencing Commission, for the appropriate application of the provisions when modifying or revoking supervised release pursuant to 28 U.S.C. § 994(a)(3), that are in effect on the date the defendant is sentenced; see 18 U.S.C. 3553(a)(4); see also 28 U.S.C. § 924(A)(3);
4. Any pertinent policy statement issued by the Sentencing Commission, pursuant to 28 U.S.C. § 994(a)(2), that is in effect on the date the defendant is sentenced; see 18 U.S.C. § 3553(a)(5); and
5. The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; see 18 U.S.C. § 3553(a)(6).
6. The need to provide restitution to any victims of the offense.
18 U.S.C. §§ 3583(e) and 3553(a).
VI. Application
The undersigned held a hearing to determine the merits of the Government's petition and whether the evidence established that the Defendant violated conditions of supervision by a preponderance of the evidence. The Government introduced a urinalysis test report that showed Miller tested positive for THC (Marijuana) on August 16, 2018. (Gov. Ex. 2.) United States Probation Officer Carl Tucker testified that Miller's positive drug test resulted in his expulsion from the halfway house. In defense, Miller's attorney claimed that Miller denied marijuana use and requested to be retested, but that his request was denied.
Based on the evidence and testimony presented at the hearing, the undersigned finds by a preponderance of the evidence that the defendant violated the special condition of release that he reside in a residential reentry center or similar facility for a period of 180 days and observe all rules of the facility (Allegation 1).
The undersigned has carefully considered each of the factors listed in 18 U.S.C. § 3583(e). The Defendant's violation is a Grade C violation, and the criminal history category is V. The policy statement range in the Guidelines Manual is 7 to 13 months. The Defendant did not comply with the conditions of supervision and has demonstrated an unwillingness to adhere to conditions of supervision.
Consequently, incarceration appropriately addresses the Defendant's violation. The sentencing objectives of punishment, deterrence and rehabilitation along with the aforementioned statutory sentencing factors will best be served by a prison sentence of 12 months, plus an additional 127 days of unserved community confinement, that is converted to an equivalent term of imprisonment, with no term of supervised release to follow.
VII. Recommendations
The court should find that the Defendant violated the allegation in the petition that he violated a special condition of release by failing to reside in a residential reentry center or similar facility, for a period of 180 days to commence upon release from confinement and observe all rules of the facility. The petition should be granted and the Defendant's supervised release should be revoked pursuant to 18 U.S.C. § 3583. The Defendant should be sentenced to a term of imprisonment of 12 months, plus an additional 127 days of unserved community confinement that is to be converted to an equivalent term of imprisonment, with no term of supervised release to follow. The Defendant requested to serve his prison term at the Federal Correctional Institution in Beaumont or Three Rivers, Texas. The Defendant's request should be accommodated, if possible.
VIII. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(c), each party to this action has the right to file objections to this report and recommendation. Objections to this report must: (1) be in writing, (2) specifically identify those findings or recommendations to which the party objects, and (3) be served and filed within fourteen (14) days after being served with a copy of this report, and (4) no more than eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(c) (2009); FED. R. CIV. P. 72(b)(2); Local Rule CV-72(c). A party who objects to this report is entitled to a de novo determination by the United States District Judge of those proposed findings and recommendations to which a specific objection is timely made. See 28 U.S.C. § 636(b)(1) (2009); FED R. CIV. P. 72(b)(3).
A party's failure to file specific, written objections to the proposed findings of fact and conclusions of law contained in this report, within fourteen (14) days of being served with a copy of this report, bars that party from: (1) entitlement to de novo review by the United States District Judge of the findings of fact and conclusions of law, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of any such findings of fact and conclusions of law accepted by the United States District Judge, see Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
