Opinion
1:17-cr-0216-TWP-TAB-01
06-10-2022
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY HEARD, Defendant.
REPORT AND RECOMMENDATION
Mark J. Dinsmore, United States Magistrate Judge
On June 2, 2022, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on May 25, 2022. Defendant Heard appeared in person with his appointed counsel Michael Donahoe. The government appeared by Jeremy Fugate, Assistant United States Attorney. U.S. Parole and Probation appeared by Officer Chad Ulmer.
The Court conducted the following procedures in accordance with Fed. R. Crim. P. 32.1(a)(1) and 18 U.S.C. § 3583:
1. The Court advised Defendant Heard of his rights and ensured he had a copy of the Petition. Defendant Heard orally waived his right to a preliminary hearing.
2. After being placed under oath, Defendant Heard admitted violation number 2 as set forth in the Petition. [Docket No. 65.] Government orally moved to withdraw the remaining violation, which motion was granted by the Court; violation number 1 was dismissed.
3. The allegation to which Defendant admitted, as fully set forth in the Petition, is:
Violation Number
Nature of Noncompliance
2
“If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.”
Since beginning supervised release in April 2021, the offender has made no payments toward his $250 fine. Additionally, he has an outstanding balance of $50 owed toward his special assessment.
4. The Court finds that:
(a) The highest grade of violation is a Grade C violation.
(b) Defendant's criminal history category is III.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 5 to 11 months' imprisonment.
5. The government recommended a sentence of eight (8) months with a term of supervised release to follow. Defendant's counsel argued for two (2) weekends of community service with a term of supervised release to follow.
The Magistrate Judge, having considered the factors set forth in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the condition set forth in violation number 2 of the Petition, and recommends that Defendant's supervised release be revoked, and that he should be sentenced to time served, with twelve (12) months of supervised release to follow. In addition to the mandatory conditions of supervision, the following conditions of supervised release will be imposed:
1. You shall report to the probation office in the judicial district to which you are released within 72 hours of release from the custody of the Bureau of Prisons. Justification: This condition is an administrative requirement of supervision.
2. You shall report to the probation officer in a manner and frequency directed by the court or probation officer. Justification: This condition is an administrative requirement of supervision.
3. You shall permit a probation officer to visit you at a reasonable time at home, or another place where the officer may legitimately enter by right or consent, and shall permit confiscation of any contraband observed in plain view of the probation officer. Justification: This condition will assist the probation officer in monitoring the offender for protection of the community.
4. You shall not knowingly leave the judicial district without the permission of the court or probation officer. Justification: This condition is an administrative requirement of supervision.
5. You shall answer truthfully the inquiries by the probation officer, subject to your 5th Amendment privilege. Justification: This condition is an administrative requirement of supervision.
6. You shall not meet, communicate, or otherwise interact with a person you know to be engaged, or planning to be engaged, in criminal activity. You shall report any contact with persons you know to be convicted felons to your probation officer within 72 hours of the contact. Justification: This condition is aimed at reducing the risk of recidivism and for protection of the community.
7. You shall reside at a location approved by the probation officer and shall notify the probation officer at least 72 hours prior to any planned change in place or circumstances of residence or employment (including, but not limited to, changes in who lives there, job positions, job responsibilities). When prior notification is not possible, you shall notify the probation officer within 72 hours of the change. Justification: This condition will assist the probation officer in monitoring the offender for protection of the community.
8. You shall not own, possess, or have access to a firearm, ammunition, destructive device or dangerous weapon. Justification: This condition will assist the probation in monitoring the offender for protection of the community and is a requirement pursuant to federal law.
9. You shall notify the probation officer within 72 hours of being arrested, charged, or questioned by a law enforcement officer. Justification: This condition is an administrative requirement of supervision.
10. You shall maintain lawful full time employment, unless excused by the probation officer for schooling, vocational training, or other reasons that prevent lawful employment. Justification: This condition will ensure the offender maintains gainful employment and aid in reducing recidivism.
11. You shall make a good faith effort to follow instructions of the probation officer necessary to ensure compliance with the conditions of supervision. Justification: This condition is aimed at reducing recidivism.
12. You shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court. Justification: This condition is aimed at reducing recidivism and to monitor the offender for protection of the community.
13. As directed by the probation officer, you shall notify third parties who may be impacted by the nature of the conduct underlying your current or prior offense(s) of conviction and/or shall permit the probation officer to make such notifications and/or confirm your compliance with this requirement. Justification: This condition is aimed at reducing recidivism and for protection of the community.
14. You shall not use or possess any controlled substances prohibited by applicable state or federal law, unless authorized to do so by a valid prescription from a licensed medical practitioner. You shall follow the prescription instructions regarding frequency and dosage. Justification: This condition will aid in addressing the offender's history of substance use.
15. You shall provide the probation officer access to any requested financial information and shall authorize the release of the information to the U.S. Attorney's Office for use in connection with the collection of any outstanding fine and/or restitution. Justification: This condition is aimed to determine if the offender has the ability to pay any fine or restitution. It also ensures the offender complies with the payment schedule.
16. You shall submit to the search by the probation officer of your person, vehicle, office/business, residence, and property, including any computer systems and hardware or software systems, electronic devices, telephones, and Internet-enabled devices, including the data contained in any such items, whenever the probation officer has a reasonable suspicion that a violation of a condition of supervision or other unlawful conduct may have occurred or be underway involving you and that the area(s) to be searched may contain evidence of such violation or conduct. Other law enforcement may assist as necessary. You shall submit to the seizure of contraband found by the probation officer. You shall warn other occupants these locations may be subject to searches. Justification: This condition will assist the probation officer in monitoring the offender for protection of the community.
Defendant reviewed the foregoing conditions and they were reviewed by defendant with his attorney. Defendant, on the record, waived reading of the above-noted conditions of supervised release. The Defendant is to be released pending the District Judge's action on this Report and Recommendation.
The parties are hereby notified that the District Judge may reconsider any matter assigned to a Magistrate Judge. The parties have fourteen days after being served a copy of this Report and Recommendation to serve and file written objections with the District Judge.