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United States v. Bolivar-Cortes

United States District Court, D. Rhode Island

October 1, 2018

UNITED STATES OF AMERICA
v.
WILSON ANDRES BOLIVAR-CORTES

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, 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 Wilson Andres Bolivar-Cortes is in violation of the terms of probation and, if so, for a recommended disposition. In compliance with that directive and in accordance with 18 U.S.C. § 3565(a) and Fed. R. Crim. P. 32.1, on July 6, 2018, Defendant was advised of the charges and ordered to be detained. On September 25, 2018, Defendant waived a violation hearing and admitted that he had violated the terms of his probation.[1] Based upon the following analysis and Defendant's admissions, I recommend that the Court impose a sentence of time served to be followed by a twelve-month term of supervised release. While on supervised release, I recommend that Defendant be required to comply with the following conditions:

Defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office. Defendant shall contribute to the costs of such treatment based on ability to pay as determined by the probation officer.
Defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of a violation of supervision, to conduct a search of Defendant's residence, automobile, and any other property under Defendant's control or ownership.
Upon notification of a warrant from immigration officials, Defendant must surrender to a duly authorized immigration official for deportation in accordance with the established procedures provided by the Immigration and Naturalization Act, Title 8, U.S.C. Section 1101 et seq. and Title 18 U.S.C., Section 3583(d). Further, if deported Defendant shall remain outside of the United States, unless granted permission to re-enter by the Attorney General of the United States.

         I. BACKGROUND

         On March 29, 2018, the Court granted the Probation Office's petition for the issuance of a warrant charging Defendant with the following violation:

Violation No. 1: The defendant shall not commit another federal, state, or local crime.
On March 21, 2018, Mr. Bolivar-Cortes committed the offenses of Carrying a Pistol or Revolver without a License, Possession of a Firearm by an Alien, Possession of a Controlled Substance, Obstructing an Officer in Execution of Duty, and Driving without a License, as evidenced by his arrest by members of the East Providence Police Department on that day.

         Based on Defendant's limited admission to the violation, I find that he is in violation of the terms and conditions of his probation.

         II. APPLICABLE LAW

         Title 18 U.S.C. § 3565(a)(1) and (2) provides that if the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Fed. R. Crim. P. 32.1 and after considering the factors set forth in § 3553(a) to the extent that they are applicable, (1) continue the defendant on probation, with or without extending the term or modifying or enlarging the conditions or (2) revoke the sentence of probation and resentence the defendant under Subchapter A. However, the court must consider the policy statement detailed in Chapter 7 of the United States Sentencing Guidelines (“USSG”). In this case, the statutory maximum term of imprisonment for the original offense is not more than ten years, and the maximum authorized term of probation that could have been imposed for the original offense is five years.

         Section 7B1.1 of the USSG provides for three grades of violations (A, B and C). Subsection (b) states that where there is more than one violation, or the violation includes more than one offense, the grade of violation is determined by the violation having the most serious grade.

         Section 7B1.1(a) of the USSG provides that a Grade A violation constitutes conduct that is punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device, or any other offense punishable by a term of imprisonment exceeding twenty years. Grade B violations are conduct constituting any other offense punishable by a term of imprisonment exceeding one year. Grade C violations are conduct constituting an offense punishable by a term of imprisonment of one year or less; or a violation of any other condition of supervision. Section 7B1.3(a)(1) states that upon a finding of a Grade A or B violation, the Court shall revoke probation. Subsection (a)(2) states that upon ...


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