Opinion
CR 18-02218-TUC-JCH (BGM)
11-01-2023
United States of America, Plaintiff, v. Effrain Alex Valenzuela, Jr., Defendant.
MAGISTRATE JUDGE REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a Petition to Revoke Supervised Release (Doc. 72) filed on August 31, 2023. An Evidentiary Hearing took place before Magistrate Judge Macdonald on October 27, 2023. See Minute Entry 10/27/2023 (Doc, 83). Defendant was present in custody and represented by counsel. The Government presented one witnesses, Senior United States Probation Officer Gloria Adamski-Soto and admitted three exhibits into evidence. (Exhibits 1 through 3.) Effrain Alex Valenzuela, Jr. testified on his behalf. Pursuant to LR Crim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. See also 18 U.S.C. § 340l(i). The Magistrate Judge recommends that the District Judge, after his independent review, find the Defendant did violate certain terms of his Supervised Release.
I. BACKGROUND
On January 11, 2019, Defendant pled guilty to the felony offense of Failure to Register as a Sex Offender, See Minute Entry 1/11/2019 (Doc. 23). On March 26, 2019, the District Judge sentenced the Defendant to 18 months in the Bureau of Prisons, with credit for time served, and placed Supervised Release for 20 years. See Amended Judgment 3/29/2019 (Doc. 37). On November 8, 2021, the Defendant's Supervised Release was revoked, and he was sentenced to 6 months in the Bureau of Prisons, followed by 60 months of Supervised Release. See Judgment 11/9/21 (Doc. 55). On January 30, 2023, the Defendant's Supervised Release was revoked, and he was sentenced to 9 months in the Bureau of Prisons, followed by 42 months of Supervised Release See Judgment 1/31/23 (Doc. 71).
On August 31, 2023, Defendant's Probation Officer filed a Petition for Warrant (Doc. 72) alleging violations of the following conditions of Supervised Release: Special Condition No, 7: “You must reside in a residence approved, in advance, by the probation officer. Any changes in the residence must be pre-approved by the probations officer."
Special Condition No, 17: “You must reside at and participate in a Residential Reentry Center, a residential substance abuse treatment program, a 12-step based i halfway house, a sober-living environment, or any combination thereof as approved and directed by the probation officer for up to 180 days, unless discharged earlier by the probation officer. You must follow all rules and regulations. You must contribute to programming costs in an amount determined
by the probation officer.
Petition for Warrant (Doc, 72, at 1-2.)
H. ANALYSIS
Allegation A - Violation of Special Condition No. 7
This Special Condition required the Defendant to “reside in a residence approved, in advance, by the probation officer. Any changes in the residence must be pre-approved by the probation officer.”
Ms. Adamski-Soto testified the general practice of the Probation Office is to give a Defendant 72 hours to notify the probation officer of any unexpected change in residence, and this was explained to Mr. Valenzuela.
On August 24, 2023, Mr. Valenzuela was residing at Dismas Charities, a residential re-entry center. He left the center, with permission, at approximately 7:30 a.m. to look for employment. He used the city bus for transportation, with the bus fare being free. He was told to return to the center by 1:00 p.m, Prior to 1:00 p.m., Mr. Valenzuela knew he was going to be late getting back to the center, so he called the center and was given permission to return by 2:00 p.m. When he did not return at 2:00 p.m., the Assistant Director of the center unilaterally extended the time for Mr. Valenzuela to return to 3:30 p.m. Mr. Valenzuela returned to the center at approximately 3:30 p.m. but he failed to provide an adequate reason for being late and he was discharged from the program.
Mr. Valenzuela testified it was difficult to notify the center that he was going to be late, because he did not have a cell phone. He also testified he was relying on the city bus for transportation, and this caused some problems.
While one can sympathize with the logistical difficulties facing Mr. Valenzuela, he was discharged from Dismas Charities for violating the rules and regulations, The Court finds the Government has met it burden in establishing the Defendant violated this Special Condition of his Supervised Release.
Allegation B - Violation of Special Condition No. 17
This Special Condition required the Defendant to “reside at and participate in a Residential Reentry Center, a residential substance abuse treatment program, a 12-step based halfway house, a sober-living environment, or any combination thereof as approved and directed by the probation officer for up to 180 days, unless discharged earlier by the probation officer. You must follow all rules and regulations."
After Mr. Valenzuela was discharged from Dismas Charities on August 24, 2023, he took the bus to a relative's house located at the San Xavier District of the Tohono: O"odham Nation. He did not call Ms. Adamski-Soto until Monday, August 28, 2023, when left a voice message for her about being discharged from Dismas Charities. Mr. i Valenzuela acknowledged he was aware that he was to notify Ms. Adamski-Soto of any change in his residence within 72 hours of the change and he failed to do so.
The Court does find the Government has met its burden in establishing the Defendant violated this Special Condition of his Supervised Release.
III. RECOMMENDATION
Based on the foregoing and pursuant to 28 U.S.C. §636 (b) and 18 U.S.C. §3401 (i), the Magistrate Judge RECOMMENDS that the District Judge, after an independent review of the record, finds as follow:
1) The Defendant did violate Special Condition No. 7 (Allegation A);
2) The Defendant did violate Special Condition No. 17 (Allegation B);
Pursuant to 28 U.S.C. §636 (b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections with fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 18-02218-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fe, R, Crim. 59 may result in waiver of the right of review.