United States v. Pena

          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 ...