Opinion
Cause No. 1:10-cr-0223 (WTL/KPF)
10-04-2012
UNITED STATES OF AMERICA, Plaintiff, v. CALVIN SHANE SHELTON, Defendant.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before the undersigned U. S. Magistrate Judge pursuant to the Order entered by the Honorable William T. Lawrence, Judge, on June 4, 2012 and August 27, 2012, designating the Duty Magistrate Judge to conduct a hearing on the Petition for Summons or Warrant for Offender Under Supervision filed with the Court on June 1, 2012, and Supplemental Petition for Warrant or Summons for Offender Under Supervision filed with the Court on August 24, 2012, and to submit to Judge Lawrence proposed Findings of Facts and Recommendation for disposition under Title 18 U.S.C. §§3401(i) and 3583(e).
All proceedings were held September 26, 2012 in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure . Mr. Shelton appeared in person with his appointed counsel, Michael Donahoe, Office of the Indiana Federal Community Defender. The government appeared by Nick Surmacz, Assistant United States Attorney. U. S. Parole and Probation appeared by David Schoettmer, U. S. Parole and Probation officer, who participated in the proceedings.
All proceedings are recorded by suitable sound recording equipment unless otherwise noted. See, Title 18 U.S.C. §3401(e).
The Court conducted the following procedures in accordance with Rule 32.1(a)(1) Federal Rules of Criminal Procedure and Title 18 U.S.C. §3583:
1. Michael Donahoe, Office of the Indiana Federal Community Defender, was present and appointed by the Court to represent Mr. Shelton in regard to the pending Petition for Revocation of Supervised Release and Supplemental Petition for Revocation of Supervised Release.
2. A copy of both Petitions was provided to Mr. Shelton and his counsel who informed the Court that they had read and understood the specifications of violations and waived further reading thereof.
3. Mr. Shelton was advised of his right to a preliminary hearing and its purpose in regard to the alleged specified violations of his supervised release contained in the pending Petitions.
4. Mr. Shelton was advised he would have a right to question witnesses against him at the preliminary hearing unless the Court, for good cause shown, found that justice did not require the appearance of a witness or witnesses.
5. Mr. Shelton was advised he had the opportunity to appear at the preliminary hearing and present evidence on his own behalf.
6. That if the preliminary hearing resulted in a finding of probable cause that Mr. Shelton had violated an alleged condition or conditions of his supervised release set forth in the Petitions, he would be held for a revocation hearing before the undersigned Magistrate Judge, in accordance with Judge Lawrence's designation.
7. Mr. Shelton stated his readiness to waive the preliminary hearing regarding the Petitions now under consideration. Mr. Shelton waived in writing the preliminary hearing and he was held to answer.
8. Mr. Donahoe stated that Mr. Shelton would stipulate there is a basis in fact to hold him on the specifications of violations of supervised release numbered 1 and 2 set forth in the Petitions.
9. Mr. Shelton, by counsel, stipulated that he committed the specified violations set forth in the Petition for Warrant or Summons for an Offender Under Supervision, and the Supplemental Petition for Warrant or Summons for an Offender Under Supervision, filed with the Court as follows:
Petition for Warrant or Summons for Offender Under Supervision, filed June 1, 2012:
+-----------------------------------------------------------------------------+ ¦Violation ¦Nature of Noncompliance ¦ ¦Number ¦ ¦ +--------------+--------------------------------------------------------------¦ ¦ ¦"The defendant shall pay any unpaid monetary penalties." ¦ ¦ ¦ ¦ ¦ ¦In the approximate 18 months the offender has been on ¦ ¦ ¦supervision, ¦ ¦ ¦ ¦ ¦ ¦he has made only five payments totaling $200, despite being ¦ ¦ ¦given a ¦ ¦ ¦ ¦ ¦1 ¦schedule of payments of at least $25 monthly. The probation ¦ ¦ ¦officer ¦ ¦ ¦ ¦ ¦ ¦has discussed the noncompliance with the offender on numerous ¦ ¦ ¦ ¦ ¦ ¦occasions, yet he continues to ignore his obligation. The ¦ ¦ ¦offender is ¦ ¦ ¦ ¦ ¦ ¦gainfully employed so payment compliance is attainable. ¦ +-----------------------------------------------------------------------------+
Supplemental Petition for Warrant or Summons for Offender Under Supervision, filed August 24, 2012:
+-----------------------------------------------------------------------+ ¦ ¦"The defendant shall not open any new lines of credit or make ¦ ¦ ¦ ¦ ¦ ¦purchases on any existing lines of credit unless approved by the ¦ ¦ ¦ ¦ ¦ ¦Probation Officer." ¦ ¦2 ¦ ¦ ¦ ¦Credit records reveal the defendant refinanced his vehicle through¦ ¦ ¦ ¦ ¦ ¦Personal Finance and incurred an additional $917 in new debt in ¦ ¦ ¦ ¦ ¦ ¦March 2012. This was not approved by the probation officer. ¦ +-----------------------------------------------------------------------+
+----------------------------------------------------------------------+ ¦¦The defendant opened a credit card account with Capital One in ¦ ¦¦ ¦ ¦¦November 2011 for $300 and opened another credit card account ¦ ¦¦ ¦ ¦¦with FST in December 2011 for $300. Both credit card balances ¦ ¦¦ ¦ ¦¦currently exceed the credit limit. Application for these credit cards¦ ¦¦ ¦ ¦¦was not approved by the probation officer. ¦ +----------------------------------------------------------------------+
The Court placed Mr. Shelton under oath and directly inquired of Mr. Shelton whether he admitted violations of the specifications of his supervised release set forth above. Mr. Shelton stated that he admitted the above violations as set forth above.
Counsel for the parties further stipulated to the following:
1) Mr. Shelton has a relevant criminal history category of V, U.S.S.G. §7B1.4(a);
2) The most serious grade of violation committed by Mr. Shelton constitutes a Grade C violation, pursuant to U.S.S.G. §7B1.1(b);
3) Pursuant to U.S.S.G. §7B1.4(a) upon revocation of supervised release, the range of imprisonment applicable to Mr. Shelton is 7-13 months;
4) The parties agreed on the appropriate disposition of the case as follows:
(a) that modification was the appropriate disposition of the case;
(b) that Mr. Shelton become current on fees owed to U. S. Parole and Probation Office within 90 days;.
(c) that Mr. Shelton will not open any new lines of credit without the approval of U. S. Parole and Probation Office; and
(d) that Mr. Shelton will remain on supervised release under the previously-imposed conditions.
The Court, having heard the admissions of the defendant, the stipulations of the parties, and the arguments and discussions on behalf of each party, NOW FINDS that the defendant, Calvin Shane Shelton, violated the specified conditions of supervised release as delineated above in the Petition to Revoke his supervised release. The defendant's supervised release is MODIFIED as set forth above.
Counsel for the parties and Mr. Shelton stipulated in open court waiver of the following:
1. Notice of the filing of the Magistrate Judge's Report and Recommendation;
2. Objection to the Report and Recommendation of the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §636(b)(1)(B); Rule 72(b), Federal Rules of Civil Procedure, and S.D.Ind.L.R.72.1(d)(2), Local Rules of the U.S. District Court for the Southern District of Indiana.
Counsel for the parties and Mr. Shelton entered the above stipulations and waivers after being notified by the undersigned Magistrate Judge that the District Court may refuse to accept the stipulations and waivers and conduct a revocation hearing pursuant to Title 18 U.S.C. §3561 et seq. and Rule 32.1 of the Federal Rules of Criminal Procedure and may reconsider the Magistrate Judge's Report and Recommendation, including making a de novo determination of any portion of the Report or specified proposed findings or recommendation upon which he may reconsider.
WHEREFORE, the U. S. Magistrate Judge RECOMMENDS the Court adopt the above recommendation modifying Calvin Shane Shelton's supervised release.
IT IS SO RECOMMENDED this 4th day of October, 2012.
_________________
Kennard P. Foster, Magistrate Judge
United States District Court
Southern District of Indiana
Distribution: Nick Surmacz,
Assistant U. S. Attorney
10 West Market Street, Suite 2100
Indianapolis, IN 46204
Michael Donahoe
Office of Indiana Federal Community Defender
111 Monument Circle, #752
Indianapolis, IN 46204
U. S. Parole and Probation U. S. Marshal