Opinion
Criminal Action 4:23-CR-00121- SDJ-AGD
10-20-2023
UNITED STATES OF AMERICA v. GARY DONEL SMITH
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AILEEN GOLDMAN DURRETT UNITED STATES MAGISTRATE JUDGE
Now before the court is the request for revocation of Defendant Gary Donel Smith'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 12, 2023, to determine whether Defendant violated his supervised release. Defendant was represented by Mike Pannitto of the Federal Public Defender's Office. The Government was represented by Matt Johnson.
Defendant was sentenced on April 22, 2021, before The Honorable Michael F. Urbanski of the Western District of Virginia after pleading guilty to the offense of Transportation of an Illegal Alien, a Class D felony. This offense carried a statutory maximum imprisonment term of 5 years. The guideline imprisonment range, based on a total offense level of 15 and a criminal history category of V, was 37 to 46 months. Defendant was subsequently sentenced to 37 months imprisonment followed by a 2-year term of supervised release subject to the standard conditions of release, plus special conditions to include residing at a residence free of firearms, ammunition, destructive devices, and dangerous weapons, participation in a drug rehabilitation program if necessary, and reasonable suspicion searches. On January 30, 2023, Defendant was released by the Bureau of Prisons to a detainer with the U.S. Marshals Service, after serving his sentence at Forrest City Medium FCI in Forrest City, Arkansas. The detainer was in reference to a violation proceeding that occurred in the Western District of Texas (Docket number: 0542 3:18CR00356). Defendant's term of supervision in the Western District of Texas was subsequently revoked and he was sentenced to time served followed by a one-month term of supervised release. His supervision term in the Western District of Texas (Docket number: 0542 3:18CR00356) expired on May 4, 2023. On May 18, 2023, jurisdiction was transferred from the Western District of Virginia to the Eastern District of Texas and assigned to Judge Sean D. Jordan, United States District Judge.
On August 28, 2023, the United States Probation Officer executed a Petition for Warrant or Summons for Offender Under Supervision (Dkt. #2, Sealed). The Petition asserts that Defendant violated five (5) conditions of supervision, as follows: (1) Defendant shall not commit another federal, state, or local crime; (2) following release from imprisonment, the court will evaluate Defendant's status and determine whether, after incarceration, drug rehabilitation is necessary and appropriate. If additional rehabilitation is deemed appropriate, Defendant shall participate in a program as designated by the court, upon consultation with the probation officer, until such time as Defendant has satisfied all the requirements of the program; (3) if Defendant is arrested or questioned by a law enforcement officer, he must notify the probation officer within 72 hours; (4) Defendant must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses Defendant from doing so. If Defendant does not have full-time employment Defendant must try to find full-time employment, unless the probation officer excuses Defendant from doing so. If Defendant plans to change where Defendant works or anything about his work (such as his position or his job responsibilities), Defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, Defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change; and (5) after initially reporting to the probation office, Defendant will receive instructions from the court or the probation officer about how and when he must report to the probation officer, and Defendant must report to the probation officer as instructed.
The Petition alleges that Defendant committed the following acts: (1) On or about August 11, 2023, in McKinney, Texas, Defendant did then and there commit the second degree felony of Burglary, in violation of Texas Penal Code § 30.02(a). According to the offense report, police officers with the McKinney Police Department responded to a call for service related to the burglary of a home. Dispatch advised the responding officer that someone had kicked in the back door and stole a gun before fleeing. The responding officer later spoke with the victim, who provided video footage from the home's surveillance cameras. According to the report, surveillance cameras captured Defendant enter through the backyard of the home from an area where the fence was down, briefly look into the window, and then enter the patio area before pushing the back door open, where he stole a BB gun that was left on the pool table. On August 21, 2023, an arrest warrant was issued for Defendant by the Collin County Sheriff's Office and this matter currently remains pending; (2) Defendant failed to report for drug testing at NOC Clinical Counseling and Consulting PLLC in McKinney, Texas on July 21 and 24, 2023; and August 2, 10, 14 and 25, 2023, as part of the U.S. Probation Office's random drug testing program. Additionally, Defendant was referred for weekly individual substance abuse counseling at Fletcher Counseling in Plano, Texas. He failed to attend his scheduled treatment sessions on July 15, 22 and 29, 2023. He has not attended any treatment sessions for the month of August 2023 and was unsuccessfully discharged from treatment on August 25, 2023; (3) On August 2, 2023, the Anna Police Department in Anna, Texas responded to a narcotics investigation after a caller reported that her husband's cousin (Dasha Gray) would not leave the property and was smoking "pot." According to the call report, responding officers arrived on scene and detected a strong odor of marijuana emitting from the vehicle on the property. Defendant was an occupant in the vehicle along with Dasha Gray at the time of this contact. After a search of the vehicle did not reveal any marijuana, the call report notes that occupants admitted to smoking marijuana in the vehicle prior to the officer's arrival. The responding officer noted that the occupants were educated on the possession of marijuana in the state of Texas and released without further incident. Defendant failed to report his contact with the Anna Police Department; (4) Defendant has failed to secure full-time employment during his time on supervised release. He has not been excused from finding full-time employment; and (5) Defendant failed to submit a monthly report via the electronic reporting system (ERS) for the months of May, June, and July 2023, within the first five days of each month as directed. As of this writing, these reports still remain outstanding.
Prior to the Government putting on its case, Defendant entered a plea of true to allegations 2-5 of the Petition. Having considered the Petition and the plea of true to allegations 2-5, 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 a term of imprisonment of twenty-one (21) months with no term of supervised release to follow. The court also recommends that Defendant be housed in the Bureau of Prisons facility in Seagoville, Texas, if appropriate.