Opinion
CRIMINAL ACTION 4:11-CR-00248-ALM-AGD
10-20-2023
UNITED STATES OF AMERICA v. MICHAEL WAYNE PEREZ, JR. (27)
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AILEEN GOLDMAN DURRETT, UNITED STATES DISTRICT JUDGE
Now before the court is the request for revocation of Defendant Michael Wayne Perez, Jr.'s (“Defendant”) supervised release. After the District Judge referred the matter to this court for a report and recommendation, the court conducted a hearing on September 7, 2023, to determine whether Defendant violated his supervised release. Defendant was represented by Michael Pannitto of the Federal Public Defender's Office. The Government was represented by Chris Eason.
Defendant was sentenced on August 6, 2013, before The Honorable Richard A. Schell of the Eastern District of Texas after pleading guilty to the offense of Conspiracy to Possess with Intent to Distribute 100 Grams or More of Heroin, a Class B felony. This offense carried a statutory minimum sentence of 5 years and a maximum imprisonment term of 40 years. The original guideline imprisonment range, based on a total offense level of 29 and a criminal history category of III, was 108 to 135 months. Defendant was subsequently sentenced to 180 months imprisonment pursuant to an 11(c)(1)(C) plea agreement, followed by a 5-year term of supervised release, subject to the standard conditions of release, plus special conditions to include financial disclosure and substance abuse testing and treatment. On October 30, 2020, per a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), the term of imprisonment was reduced to 144 months. The total offense level was amended to 27 with an amended guideline range of 70 to 87 months. On December 19, 2022, Defendant completed his period of imprisonment and began service of the supervision term. On January 28, 2020, this case was reassigned to The Honorable Amos L. Mazzant, III, U.S. District Judge for the Eastern District of Texas.
On July 27, 2023, the United States Probation Officer executed a Petition for Warrant or Summons for Offender Under Supervision (Dkt. #1625, Sealed). The Petition asserts that Defendant violated four (4) conditions of supervision, as follows: (1) The defendant shall refrain from any unlawful use of a controlled substance; (2) The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician; (3) The defendant shall notify the probation officer at least ten days prior to any change in residence or employment; and (4) The defendant shall participate in a program of testing and treatment for drug abuse, under the guidance and direction of the United States Probation Office, until such time as the defendant is released from the program by the probation officer (Dkt. #1625 at pp. 1-2, Sealed).
The Petition alleges that Defendant committed the following acts: (1) Defendant submitted urine specimens on December 22, 2022; January 23, March 3, and July 7, 2023, all of which tested positive for methamphetamine. Each sample was later confirmed positive by Alere Toxicology. Additionally, the urine specimen submitted on July 7, 2023, was diluted; (2) On January 24, 2023, during a phone call with Defendant to schedule a home visit, he admitted that he no longer lived with his girlfriend at his approved residence in Dallas, Texas. Defendant admitted he moved in with his mother in Plano, Texas two weeks ago without permission of the U.S. Probation Office. Contact was later made with his now ex-girlfriend, and she confirmed they were no longer in a relationship, and he moved out of the home at the beginning of January; and (3) On February 15, 2023, Defendant completed a substance evaluation at Fletcher Counseling & Associates (“Fletcher”) in Plano, Texas and was recommended for twice a month individual substance abuse counseling. The evaluation noted that Defendant was made aware that another positive specimen for illegal drug use would result in him being referred to group counseling as well. Following Defendant's positive urine specimen on March 3, 2023, Defendant was referred for weekly Cognitive Behavioral group counseling. On March 1, 2023, Defendant failed to attend his individual substance abuse counseling session at Fletcher. On June 2, 2023, Defendant failed to attend Cognitive Behavioral group counseling at Fletcher.
Prior to the Government putting on its case at the final revocation hearing, Defendant entered a plea of true to allegations 1, 2, 3, and 4 of the Petition. Having considered the Petition and the plea of true to allegations 1, 2, 3, and 4, the court finds that Defendant did violate his conditions of supervised release.
Defendant waived his right to allocute before the District Judge and his right to object to the report and recommendation of this court.
RECOMMENDATION
Pursuant to the Sentencing Reform Act of 1984, the court recommends that Defendant's supervised release be revoked and that he be committed to the custody of the Bureau of Prisons to be imprisoned for an additional term of imprisonment of eight (8) months, with a term of fortyeight (48) months of supervised release to follow.
The court also recommends that Defendant be housed in the Bureau of Prisons facility in Seagoville, Texas, if appropriate.