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United States v. Buckles

United States District Court, D. Montana, Great Falls Division

July 13, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
EMMETT A. BUCKLES, III, Defendant.

FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE

JOHN JOHNSTON, Magistrate Judge.

I. Synopsis

Mr. Buckles was accused of violating his conditions of supervised release by consuming methamphetamine, failing to report to his probation officer as directed, and failing to participate in substance abuse testing. He admitted to the violations. Mr. Buckles's supervised release should be revoked. He should be sentenced to six months of custody, with 22 months of supervised release to follow.

II. Status

Mr. Buckles pleaded guilty in 2013 to False Statement During a Firearms Transaction. Doc. 25. He was sentenced to 150 days in custody, which he had already served awaiting sentencing, and 36 months of supervised release. Docs. 32-33. His first term of supervised release began on December 12, 2013. He was in state custody for an unrelated issue until December 23, 2013. Doc. 36. In April 2014, his supervised release was revoked because he violated its conditions by consuming marijuana and methamphetamine and by failing to report to chemical dependency treatment sessions. Mr. Buckles was ordered to spend an additional eight months in custody as a sanction for the violations, with 28 months of supervised release to follow. Docs. 44-45. Mr. Buckles began his current term of supervised release on November 24, 2014. Doc. 48. On March 18, 2015, United District Judge Brian Morris approved a Report on Offender under Supervision, allowing the United States Probation Office to continue to work with Mr. Buckles despite several alleged violations of his supervised release. Doc. 47. Mr. Buckles subsequently participated in inpatient chemical dependency treatment at the Montana Chemical Dependency Center. He was discharged from the Center on May 20, 2015. Doc. 48.

Petition

On June 23, 2015, the United States Probation Office filed a petition asking the Court to revoke Mr. Buckles's supervised release. In the petition, the Probation Office accused Mr. Buckles of violating Standard Condition 7 by failing to refrain from the use of controlled substances. The Probation Office also accused Mr. Buckles of violating Standard Condition 2 by failing to report to the probation officer as directed. The petition alleged Mr. Buckles violated Special Condition 1 by failing to participate in substance abuse testing. Doc. 48. Based on the petition, United States District Judge Brian Morris issued a warrant for Mr. Buckles's arrest. Doc. 49.

Initial appearance

Mr. Buckles appeared before the undersigned on July 10, 2015, in Great Falls, Montana. Federal Defender Anthony R. Gallagher accompanied him at the initial appearance. Assistant United States Attorney Ryan Weldon represented the United States.

Mr. Buckles said he had read the petition and understood the allegations. Mr. Buckles waived the preliminary hearing, and the parties consented to proceed with the revocation hearing before the undersigned.

Revocation hearing

On July 10, 2015, Mr. Buckles appeared with Mr. Gallagher before the undersigned for a revocation hearing. Mr. Weldon appeared on behalf of the United States.

Mr. Buckles admitted that he violated the conditions of his supervised release. The violations are serious and warrant revocation of Mr. Buckles's supervised release.

Mr. Buckles's violation grade is Grade C, his criminal history category is II, and his underlying offense is a Class C felony. He could be incarcerated for up to 24 months. He could be ordered to remain on supervised release for 28 months, less any custody time imposed. The United States Sentencing Guidelines call for four to ten months in custody.

Mr. Gallagher requested a sentence at the low end of the guideline range, with a term of supervised release to follow. Mr. Weldon recommended a sentence within the guideline range, followed by supervised release. Mr. Buckles addressed the Court and apologized for his actions.

III. Analysis

Mr. Buckles's supervised release should be revoked because he admitted violating its conditions. The undersigned is particularly concerned by Mr. Buckles's use of methamphetamine just six days after being discharged from treatment. Mr. Buckles should be sentenced to six months of custody, with 22 months of supervised release to follow. The same conditions of release should be continued. 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. Buckles 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. Buckles's objection, if it is filed within the allotted time, before making a final determination on whether to revoke Mr. Buckles's supervised release and what, if any, sanction to impose.

The Court FINDS:

1. Emmett A. Buckles violated Standard Condition 7 of his supervised release by consuming methamphetamine on May 26, 2015.
2. Emmett A. Buckles violated Standard Condition 2 of his supervised release by failing to report to his probation officer on May 26, 2015.
3. Emmett A. Buckles violated Special Condition 1 of his supervised release by report for urine testing on May 26, 2015, and May 28, 2015.

The Court RECOMMENDS:

The District Court should enter the attached Judgment, revoking Mr. Buckles's supervised release and committing Mr. Buckles to the custody of the United States Bureau of Prisons for six months, with 22 months 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. ยง 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.

[✓] admitted guilt to violation of condition(s) Standard Cond 7, 2; Special Cond 1 of 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 Use of controlled substance 05/26/2015 2 Failure to report to USPO 05/26/2015 3 Failure to report for substance abuse testing 05/28/2015

The defendant is sentenced as provided in pages 2 through 4 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.

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:

Six months

[] 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

1 have executed this judgment as follows:

Defendant delivered on _____________________________ to ____________________________________ at __________________________________ with a certified copy of this judgment.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of: 22 months

The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall 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 the defendant poses a low risk of future substance abuse. (Check, if applicable.)

[✓] The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if

[✓] The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)

[] The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. (Check, if applicable.)

[] The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)

If this judgment imposes a fine or restitution, it is be a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.

The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;

2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;

3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;

4) the defendant shall support his or her dependents and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;

6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;

8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;

9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

SPECIAL CONDITIONS OF SUPERVISION

1. 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 officer. The defendant is to pay part or all of the cost of this treatment, as determined by the United States Probation Officer.

2. 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 Officer.

3. The defendant shall submit their 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.

4. 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.

5. 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 substances such as, but not limited to, synthetic marijuana and/or synthetic stimulants that are not manufactured for human consumption, for the purpose of altering their mental or physical state.


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