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United States v. Birdtail

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

December 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EMERSON PAUL BIRDTAIL II, Defendant.

          FINDINGS AND RECOMMENDATIONS

          John Johnston United States Magistrate Judge.

         I. Synopsis

         Defendant Emerson Paul Birdtail II (Birdtail) has been accused of violating the conditions of his supervised release. Birdtail admitted alleged violations 2 and 3. With respect to alleged violation 1, Birdtail did not admit or deny that he had committed another crime. Birdtail admitted only that he had received criminal citations from a Montana Highway Patrol Officer on or about June 16, 2019. The government did not attempt to prove alleged violation 1.

         Birdtail's supervised release should be revoked. Birdtail should be placed in custody for 4 months, with 28 months of supervised release to follow, Birdtail should be allowed to self-report for his term of custody. Birdtail should report for his term of custody on or 12:00 p.m. (noon) on December 20, 2019. Birdtail should serve the first 90 days of supervised release subject to home confinement. Birdtail should be restricted to his residence at all times except for employment, school, and activities pre-approved by the United States Probation Office.

         II. Status

         Birdtail pleaded guilty to Assault Resulting in Serious Bodily Injury on April 23, 2015. (Doc. 21). The Court sentenced Birdtail to 34 months of custody, followed by 3 years of supervised release. (Doc. 27). Birdtail's current term of supervised release began on July 27, 2018. (Doc. 52 at 1).

         Petition

         The United States Probation Office filed an Amended Petition on November 21, 2019, requesting that the Court revoke Birdtail's supervised release. (Doc. 52). The Amended Petition alleged that Birdtail had violated the conditions of his supervised release: 1) by committing another other crime; and 2) by consuming alcohol on two separate occasions.

         Initial appearance

         Birdtail appeared before the undersigned for his initial appearance on the Amended Petition on December 5, 2019. Birdtail was represented by counsel. Birdtail stated that he had read the petition and that he understood the allegations. Birdtail 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 December 5, 2019. Birdtail admitted that he had violated the conditions of his supervised release by consuming alcohol on two separate occasions. With respect to alleged violation 1, Birdtail did not admit or deny that he had committed another crime. Birdtail admitted only that he had received criminal citations from a Montana Highway Patrol Officer on or about June 16, 2019. The government did not attempt to prove alleged violation 1. The violations that Birdtail admitted are serious and warrant revocation of Birdtail's supervised release.

         Birdtail's violations are Grade C violations. Birdtail's criminal history category is IV. Birdtail's underlying offense is a Class C felony. Birdtail could be incarcerated for up to 24 months. Birdtail could be ordered to remain on supervised release for up to 32 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 6 to 12 months.

         III. ...


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