Opinion
0980 2:04CR00165-MKD-1
12-03-2024
Dennis R. Penfield
Asst. U.S. Attorney: Timothy John Ohms Defense Attorney: Nicolas V. Vieth
Date of Original Sentence: June 7, 2005
Date Supervision Commenced: August 6, 2024
Date Supervision Expires: August 5, 2029
Asst. U.S. Attorney: Timothy John Ohms
Defense Attorney: Nicolas V. Vieth
The Honorable Justin L. Quackenbush, Senior U.S. District Judge
PETITION FOR WARRANT OR SUMMONS FOR OFFENDER UNDER SUPERVISION
The Honorable Mary K. Dimke, U.S. District Judge
PETITIONING THE COURT
To issue a warrant
On August 8, 2024, a United States probation officer reviewed the conditions of supervised release with Mr. Penfield. He signed the judgment acknowledging his understanding of his conditions of supervision.
The probation officer believes that the offender has violated the following condition(s) of supervision:
Violation Number Nature of Noncompliance
1 Special Condition #5: You must abstain from the use of illegal controlled substances, and must submit to urinalysis and sweat patch testing, as directed by the supervising officer, but no more than 6 tests per month, in order to confirm continued abstinence from these substances.
Supporting Evidence: It is alleged that Mr. Penfield violated the above-stated condition on or about November 24, 2024, by consuming an illegal controlled substance, fentanyl, as evidenced by a signed admission form.
On November 25, 2024, Mr. Penfield submitted to a random urinalysis (UA) conducted by Pioneer Human Services (PHS). The urine sample tested presumptive positive for fentanyl. Mr. Penfield subsequently admitted to use on or about November 24, 2024, and signed a form attesting to such. This admission was made before PHS staff who also signed as witness on the form.
The U.S. Probation Office respectfully recommends the Court issue a warrant requiring the offender to appear to answer to the allegation(s) contained in this petition.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: November 27, 2024
Nicolas Olson, U.S. Probation Officer
THE COURT ORDERS
[ ] No Action
[ ] The Issuance of a Warrant
[X] The Issuance of a Summons
[ ] The incorporation of the violation(s) contained in this petition with the other violations pending before the Court.
[ ] Defendant to appear before the Judge assigned to the case.
[ ] Defendant to appear before the Magistrate Judge.
[ ] Other
Honorable Mary K. Dimke, United States District Judge
U.S. Courthouse and Federal Building
825 Jadwin Avenue, Suite 190
Richland, Washington 99352
RE: Penfield, Dennis R.
Dkt. No. 0980 2:04CR00165-MKD-1
Custody Status: Continues Under Supervision
Violation Report #1
Dear Judge Dimke:
Attached for the Court's review is a petition for action on the above-captioned offender. The circumstances of the alleged noncompliant behavior are reported therein.
Compliance with Supervision Conditions:
On June 13, 2005, Mr. Penfield was sentenced in the Eastern District of Washington by The Honorable Judge Quackenbush, Senior U.S. District Judge, following a guilty plea to five counts of possession with intent to distribute. Mr. Penfield was sentenced to serve 240 months imprisonment, followed by a 10-year term of supervised release (TSR). Supervision commenced in this matter on August 12, 2020.
On May 29, 2024, Mr. Penfield's TSR was revoked by Your Honor, following an admission of guilt to 13 violations. Your Honor subsequently sentenced Mr. Penfield to serve 90 days imprisonment to be followed by 5-year term of supervised release. Supervision commenced in this matter on August 6, 2024.
During this TSR, Mr. Penfield was quick to secure employment and enrolled in substance use disorder (SUD) treatment as required.
On November 4, 2024, a report on offender under supervision was filed with the Court detailing a urinalysis (UA) drug test submitted by Mr. Penfield was confirmed positive for cocaine and Mr. Penfield admitted to such use. Mr. Penfield was counseled in this matter and verbally contracted to abstain from further use.
On November 22, 2024, another report on offender under supervision was filed with the Court, again detailing how Mr. Penfield submitted another confirmed positive UA. This time Mr. Penfield denied such use. Mr. Penfield's case was staffed with his SUD treatment provider at Pioneer Human Services (PHS), who advised Mr. Penfield has previously attended inpatient SUD treatment, as well as a number of years in outpatient treatment. It was determined by PHS treatment staff that Mr. Penfield was to be placed on a behavior contract regarding the continued use and may be terminated from treatment upon another confirmed positive test or admission of use. Mr. Penfield was again verbally admonished by this officer and warned that further use may result in an elevated response.
As the attached petition explains, Mr. Penfield has yet again submitted a positive UA and admitted to use of the indicated substance, fentanyl. Despite regular drug testing, engagement in treatment services, and multiple admonishments from this officer, Mr. Penfield continues to consume illegal controlled substances. The latest admission of fentanyl use demonstrates Mr. Penfield's escalating behavior causing this officer concern for the safety of both Mr. Penfield, as well as the community at large.
Staffing with PHS treatment provider on November 27, 2024, revealed that Mr. Penfield has not yet been placed on the above-noted behavior contract. However, the treatment provider concurred with this officer's assessment of the situation.
According to 18 U.S.C. § 3583(g)(4), a revocation of supervised release is mandatory if the offender, as part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year. The Court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs, warrants an exception. In Mr. Penfield's case, he has exceeded the three positive drug tests in 1 year. He has been provided treatment resources and drug use is alleged to have continued.
Offender Characteristics:
Mr. Penfield reports full-time employment at Anderson Sheet Metal, where he worked prior to his last revocation.
Mr. Penfield is living with his mother in Spokane, Washington.
As detailed above, Mr. Penfield is enrolled in outpatient SUD treatment with PHS. However, in light of ongoing drug use, this treatment is in jeopardy.
Statutory and Guideline Provisions:
Pursuant to 18 U.S.C. § 3583(e)(3), the Court may revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than 1 year in any other case.
Pursuant to 18 U.S.C. § 3583(h), when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the Court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release less any term of imprisonment that was imposed upon revocation of supervised release.
As a cost-containment measure, in March 2004, the Judicial Conference endorsed a nonbinding policy that substantially restrains enhanced sentencing authority. This policy was incorporated in our agency's Monograph 109, The Supervision of Federal Offenders:
Although it is statutorily permissible to impose a new term of supervised release in most post-April 30, 2003, cases, officers should ordinarily recommend a new supervised release sentence only when the prison time imposed for the current violation, plus any prison time imposed for a prior revocation(s) of this term of supervised release, is less than the maximum prison term set forth at 18 § 3583(e)(3).
If revoked, the following options are available for sentencing:
Original Criminal History Category: VI
Grade of Violation: C
Class of Offense: Class A Felony
Provisions Statutory Provisions Guideline
CUSTODY: Not more than 5 8-14 months years
SUPERVISED RELEASE: Life Life
It is respectfully recommended that the Court issue a warrant requiring Dennis R. Penfield to appear to answer to the allegation(s) in the attached petition.
Respectfully submitted, Matthew L. Thompson Chief U.S. Probation Officer
Date Olson11/27/2024
Nicolas Olson, U.S. Probation Officer
APPROVED BY:
SanJuanita B. Coronado Supervisory U.S. Probation Officer