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United States v. McQueen

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

July 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID ALLEN MCQUEEN, Defendant.

          FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE

          John Johnston, United States Magistrate Judge.

         I. Synopsis

         The United States of America accused Mr. McQueen of violating his conditions of supervised release by 1) being terminated from sex offender treatment, 2) possessing a smartphone without notifying his probation officer, 3) viewing pornographic materials, 4) possessing a device with access to the internet without permission, and 5) committing another crime. Mr. McQueen admitted to violation 1 through 4, but denied violation 5. Mr. McQueen's supervised release should be revoked. Mr. McQueen should be sentenced to seven months custody, with fifty months of supervised release to follow. As a condition of his supervised release, if Mr. McQueen is deemed eligible for placement in a Pre-Release Center in Montana, he should spend the first 180 days of his supervised release in a Pre- Release Center as directed by the United States Probation Office.

         II. Status

         On June 24, 2010, United States District Judge Sam Haddon sentenced Mr. McQueen to seventy-two months in custody, with sixty months of supervised release to follow, after Mr. McQueen pleaded guilty to Activities Relating to Material Constituting or Containing Child Pornography. (Doc. 32). Mr. McQueen's first term of supervised release began on May 12, 2015.

         On October 26, 2016, the Court revoked Mr. McQueen's supervised release after he was terminated from sex offender treatment and had been involved in a sexual relationship with a resident of the Great Falls Transition Center, and that he had a pornographic video, a PlayStation 4, and an internet router. United States District Judge Brian Morris sentenced him to three months custody with fifty-seven months of supervised release to follow. (Doc. 47). He began his current term of supervised release on December 20, 2016.

         Petition

         On June 29, 2018, the United States Probation office filed a Petition for Warrant or Summons and Order alleging that Mr. McQueen violated his supervised release. The petition alleged that On June 28, 2018, Mr. McQueen was terminated from sex offender treatment. The petition also alleged that Mr. McQueen possessed a smartphone, which had a camera, for over a year without notifying his probation officer. Next, the petition alleges that on June 28, 2108, Mr. McQueen admitted to his probation officer that he had accessed pornography sites on his smartphone, and stated that he saved pictures of naked women on his phone. The petition further alleged that Mr. McQueen possessed an internet capable device (his smartphone) without permission from his probation officer. Finally, the petition alleged that on June 13, 2018, Mr. McQueen had been arrested for Embezzlement after allegedly stealing $1, 900 from Burger King. (Doc. 49). Based on the petition, Judge Morris issued a warrant for Mr. McQueen's arrest. (Doc. 50).

         Initial appearance

         Mr. McQueen appeared before the undersigned on July 10, 2018, in Great Falls, Montana. Federal Defender Tony Gallagher accompanied him. Assistant United States Attorney Ryan Weldon represented the United States.

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

         Revocation hearing

         Mr. McQueen admitted that he violated the conditions of his supervised release as alleged in violations 1 through 4. Due to the pending nature of the charge in violation 5, Mr. McQueen neither admitted nor denied the violation. The United States did not put on any evidence as to violation 5, and therefore has not met its burden with respect to that violation. The admitted violations are serious and warrant revocation of Mr. McQueen's supervised release.

         Mr. McQueen's violation grade is Grade C, his criminal history category is I, 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 fifty-seven months, less any custody time imposed. The ...


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