United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND UNITED STATES MAGISTRATE JUDGE.
This
matter has been referred to me pursuant to 28 U.S.C. §
636(b)(1)(B) and 18 U.S.C. § 3401(i) for proposed
findings of fact concerning whether Defendant is in violation
of the terms of his supervised release and, if so, to
recommend a disposition of this matter. In compliance with
that directive and in accordance with 18 U.S.C. §
3583(e) and Fed. R. Crim. P. 32.1, a revocation hearing was
held on July 31, 2018, at which the Government presented one
witness, Providence Police Officer Daryl Pfeiffer and one
Computer Disk Exhibit containing police officer body camera
footage. At the hearing, I ordered Defendant released pending
my Report and Recommendation and final sentencing before
Chief Judge William E. Smith. Based upon the following
analysis and the admissions of Defendant, I recommend that
Defendant continue on his existing term and conditions of
supervision with no sanction.
Background
On May
18, 2018, the Probation Office petitioned the Court for the
issuance of a warrant. On that day, the District Court
ordered the issuance of a warrant. Defendant initially
appeared in Court on June 13, 2018 and was released. On July
31, 2018, he appeared for a revocation hearing at which time
Defendant knowingly and voluntarily admitted to the following
charge:
Violation No. 2: Defendant shall notify the Probation
Officer within seventy-two hours of being arrested or
questioned by a law enforcement officer.
On May 5, 2018, Defendant committed the felony offense of
Possession of Schedule I to V Controlled Substance, as
supported by his arrest on that date by the Providence Police
Department. As of the date of this report, Defendant has
failed to contact this Officer regarding his arrest.
As
Defendant has admitted this charge, I find he is in violation
of the terms and conditions of his supervised release.
Defendant exercised his right to a revocation hearing under
Fed. R. Crim. P. 32.1(b)(2) and a hearing was held on July
31, 2018 regarding the following charge:
Violation No. 1: While on supervision, Defendant
shall not commit another federal, state or local
crime.
On May 5, 2018, Defendant committed the felony offense of
Possession of Schedule I to V Controlled Substance, as
supported by his arrest on that date by the Providence Police
Department. On May 6, 2018, Defendant was released on
personal recognizance. He is scheduled to appear in Sixth
Division District Court on July 30, 2018 for a
pre-arraignment conference under Docket #62-2018-04872.
After
considering the evidence presented at the revocation hearing,
the Court finds that the Government has not met its burden of
proving Violation No. 1, a felony offense.
Recommended
Disposition
Section
3583(e)(2), 18 U.S.C., provides that if the Court finds that
Defendant violated a condition of supervised release, the
Court may extend the term of supervised release if less than
the maximum term was previously imposed. The maximum term of
supervised release is life.
Section
3583(e)(3), 18 U.S.C., provides that 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 or supervised release without credit for time previously
served on post release supervision, if the Court finds by a
preponderance of evidence that the defendant has violated a
condition of supervised release, except that a defendant
whose term is revoked under this paragraph may not be
sentenced to a term beyond 5 years if the instant offense was
a Class A felony, 3 years for a Class B felony, 2 years for a
Class C or D felony, or 1 year for a Class E felony or a
misdemeanor. Defendant was on supervision for Class A felony.
Therefore, he may not be required to serve more than five
years' imprisonment upon revocation.
Pursuant
to 18 U.S.C. § 3583(h) and § 7B 1.3(g)(2), when a
term of supervised release is revoked and the defendant is
required to serve a term of imprisonment that is less than
the maximum term of imprisonment authorized, the Court may
include a requirement that the defendant be placed on a term
of supervised release after imprisonment. The length of such
a term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any
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