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United States v. Hernandez

United States District Court, D. Montana, Helena Division

October 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES HENRY HERNANDEZ, JR., Defendant.

          FINDINGS AND RECOMMENDATIONS

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         I. Synopsis

         Defendant James Henry Hernandez, Jr. (Hernandez) has been accused of violating the conditions of his supervised release. Hernandez admitted the alleged violations. Hernandez's supervised release should be revoked. Hernandez should be placed in custody for 4 months, with 32 months of supervised release to follow. Hernandez should receive credit for time served. Hernandez should begin his term of supervised release with a 60-day placement at an inpatient treatment facility in Montana, followed by a 180-day placement at a Residential Reentry Center in Nevada. If the placement of Hernandez in a Residential Reentry Center in Nevada is not possible, Hernandez should be placed in a Residential Reentry Center in Montana.

         II. Status

         Hernandez pleaded guilty to Conspiracy to Make and Possess a Counterfeited Security on November 13, 2014. (Doc. 36). The Court sentenced Hernandez to 60 months of custody, followed by 36 months of supervised release. (Doc. 48). Hernandez's current term of supervised release began on March 9, 2018. (Doc. 58 at 1).

         Petition

         The United States Probation Office filed a Petition on August 3, 2018, requesting that the Court revoke Hernandez's supervised release. (Doc. 58). The Petition alleges that Hernandez violated the conditions of his supervised release: 1) by using methamphetamine; and 2) by failing to provide a urine sample at the testing facility; 3) by failing to report for urinalysis testing; and 4) by failing to report a contact with law enforcement to his probation officer. (Doc. 58 at 1-4). United States District Judge Charles C. Lovell issued a warrant for Hernandez's arrest on August 3, 2018. (Doc. 59).

         Initial appearance

         Hernandez appeared before the undersigned for his initial appearance on October 2, 2018. (Doc. 62). Hernandez was represented by counsel. Hernandez stated that he had read the petition and that he understood the allegations. Hernandez waived his right to a preliminary hearing. The parties consented to proceed with the revocation hearing before the undersigned.

         Revocation hearing

         The Court conducted a revocation hearing on October 16, 2018. Hernandez admitted that he had violated the conditions of his supervised release 1) by using methamphetamine; and 2) by failing to provide a urine sample at the testing facility; 3) by failing to report for urinalysis testing; and 4) by failing to report a contact with law enforcement to his probation officer. The violations are serious and warrant revocation of Hernandez's supervised release.

         Hernandez's violation is a Grade C violation. Hernandez's criminal history category is VI. Hernandez's underlying offense is a Class D felony. Hernandez could be incarcerated for up to 24 months. He could be ordered to remain on supervised release for up to 36 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 8 to 14 months.

         III. Analysis

         Hernandez's supervised release should be revoked. Hernandez should be incarcerated for 4 months, with 32 months of supervised release to follow. Hernandez should receive credit for time served. Hernandez should begin his term of supervised release with a 60-day placement at an inpatient treatment facility in Montana, followed by a 180-day placement at a Residential Reentry Center in Nevada. If the placement of Hernandez in a Residential Reentry Center in Nevada is not possible, Hernandez should be placed in a Residential Reentry Center ...


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