Opinion
1:13-cr-0230-JMS-TAB-01
06-17-2022
UNITED STATES OF AMERICA, Plaintiff, v. BERTON MAYS, Defendant.
REPORT AND RECOMMENDATION
"MARIO GARCIA, UNITED STATES MAGISTRATE JUDGE
On June 16, 2022, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on May 25, 2022. Defendant Mays appeared in person with his appointed counsel Michael Donahoe. The government appeared by Jayson McGrath, Assistant United States Attorney. U.S. Parole and Probation appeared by Officer Tasha Taylor.
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 Mays of his rights and provided him with a copy of the petition. Defendant Mays orally waived his right to a preliminary hearing.
2. After being placed under oath, Defendant Mays admitted violation numbers 1, and 3. [Docket No. 132.] Government orally moved to withdraw the remaining violation numbers, which motion was granted by the Court; violation numbers 2, and 4 dismissed.
3. The allegations to which Defendant admitted, as fully set forth in the petition, are:
Violation
Number Nature of Noncompliance
1 “You shall refrain from any unlawful use of a controlled substance.”
On May 2, 2022, Mr. Mays submitted a urine sample that tested positive for amphetamines and marijuana, and he admitted to using marijuana and methamphetamine. On May 18, 2022, he submitted a urine sample that was diluted and tested positive for marijuana, amphetamines, and fentanyl. Prior to collecting the second urine sample, he reported his last illicit drug use was methamphetamine on May 12, 2022.
3 “You shall notify the probation officer within 72 hours of being arrested, charged, or questioned by a law enforcement officer.”
On May 2, 2022, Mr. Mays allegedly battered his friend by punching him repeatedly in the face. To date, the victim remains hospitalized for a brain bleed, a brain shift, and swelling due to the battery. The probation office was first made aware of this incident on May 9, 2022, when a detective from IMPD contacted the probation office. The detective conducted a search of Mr. May's residence on May 6, 2022, and formally interviewed Mr. Mays on May 7, 2022. He is considered the main suspect in this case, and the detective is hopeful the victim will recover and be able to make a statement. To date, Mr. Mays has failed to notify the probation office of his interaction with law enforcement on this matter.
4. The parties stipulated that:
(a) The highest grade of violation is a Grade B violation.
(b) Defendant's criminal history category is VI.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 21 to 24 months' imprisonment.
5. The government recommended a sentence within guidelines with no supervised release to follow. Defendant's counsel argued for a sentence of 180 days at the Volunteers of America to allow outpatient drug treatment and employment with no supervised release to follow. Defendant requested placement at USP McCreary.
The Magistrate Judge, having considered the factors in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions in the petition, that his supervised release should be revoked, and that he should be sentenced to the custody of the Attorney General or his designee for a period of twenty-one (21) months with no supervised release to follow/with supervised release to follow. The Magistrate Judge will make a recommendation of placement at USPO McCreary. The Defendant is to be taken into custody immediately 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 waived the fourteen-day period to object to the Report and Recommendation.