Opinion
6:17-CR-00072-JDK-JDL
11-20-2024
UNITED STATES OF AMERICA v. LENARD DONNELL ATKINS (1)
REPORT AND RECOMMENDATION ON REVOCATION OF SUPERVISED RELEASE
K. NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE
On November 20, 2024, the Court held a final revocation hearing on a Petition for Warrant or Summons for Offender under Supervision. The Government was represented by Assistant United States Attorney Alan Jackson. Defendant was represented by Assistant Federal Defender Jonathan Hyatt.
Background
After pleading guilty to the offense of Possession with Intent to Distribute Methamphetamine, Cocaine, and Other Controlled Substances, a Class C felony, Defendant Lenard Donnell Atkins was sentenced on June 12, 2018, by United States District Judge Ron Clark. The offense carried a statutory maximum imprisonment term of 20 years. The guideline imprisonment range, based on a total offense level of 27 and a criminal history category of II, was 78 to 97 months. The Court sentenced Defendant to an imprisonment term of 84 months, followed by a 3-year term of supervised release subject to the standard conditions of release, plus special conditions to include access to financial information, participation in drug abuse testing and treatment, and obtaining a high school equivalency certificate. The case was re-assigned to United States District Judge Jeremy D. Kernodle on August 19, 2020. Defendant completed his term of imprisonment and started his term of supervised release on October 3, 2022.
Allegations
In the Petition seeking to revoke Defendant's supervised release, filed on October 10, 2024, United States Probation Officer Wesley Basham alleges that Defendant violated the following conditions of supervised release:
1. Allegation 1 (mandatory condition 3): The defendant must refrain from any unlawful use of a controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. It is alleged that Defendant submitted urine specimens on January 18, 2023, February 3, 2023, September 5, 2024, September 11, 2024, September 30, 2024, and October 3, 2024, that tested positive for marijuana. The positive results were confirmed by Abbott Labs. It is also alleged that Defendant submitted a urine specimen on September 30, 2024, that tested positive for Fentanyl. The specimen was confirmed positive by Abbott Labs for both Fentanyl and Norfentanyl.
Applicable Law
According to 18 U.S.C. § 3583(e)(3), the Court may revoke the term of supervised release and require a Defendant to serve in prison all or part of the term of supervised release without credit for the time previously served under supervision, if it finds by a preponderance of the evidence that Defendant violated a term of supervised release. Supervised release shall be revoked upon a finding of a Grade A or B supervised release violation. U.S.S.G. § 7B1.3(a)(1). In the present case, Defendant's original offense of conviction was a Class C felony. Accordingly, the maximum imprisonment sentence that may be imposed is 2 years. 18 U.S.C. § 3583(e).
Under the Sentencing Guidelines, which are non-binding,if the Court finds by a preponderance of the evidence that Defendant violated his conditions of supervised release by using and thereby possessing Fentanyl and Norfentanyl, as alleged in the petition, he is guilty of a Grade B violation. U.S.S.G. § 7B1.1(a). Defendant's original criminal history category was II. The guidelines provide that Defendant's guideline imprisonment range for a Grade B violation is 6 to 12 months. If the Court finds by a preponderance of the evidence that Defendant possessed marijuana, tested positive for marijuana, or tested positive for Fentanyl or Norfentanyl, as alleged in the petition, he is guilty of a Grade C violation. U.S.S.G. § 7B1.1(a). With Defendant's original criminal history category of II, the guidelines provide that Defendant's guideline imprisonment range for a Grade C violation is 4 to 10 months.
The United States Sentencing Guidelines as applied to revocations of supervised release “have always been nonbinding, advisory guides to district courts in supervised release revocation proceedings.” United States v. Brown, 122 Fed.Appx. 648, 2005 WL 518704, slip op. p.1 (citing United States v. Davis, 53 F.3d 638, 642 (5th Cir. 1995)); see also United States v. Mathena, 23 F.3d 87 (5th Cir. 1994) (policy statements contained in Chapter 7 of the Sentencing Guidelines applicable to sentencing a defendant upon revocation of supervised release are advisory only.).
Hearing
On November 20, 2024, Defendant appeared for a final revocation hearing. Assistant United States Attorney Alan Jackson announced that Defendant and the Government reached an agreement for Defendant to enter a plea of true to Allegation 1 of the petition and to jointly request a sentence of imprisonment for a term of 6 months with no further term of supervised release. After the Court explained to Defendant his right to a revocation hearing, he waived his right to a revocation hearing and entered a plea of “true” to Allegation 1 of the petition. Defendant requested a recommendation to the Bureau of Prisons to confine him at FCI Seagoville.
Findings and Conclusions
I find that Defendant is competent and that his plea and waiver of the revocation hearing was knowingly and voluntarily made. I accept Defendant's plea and find by a preponderance of the evidence that Allegation 1 of the petition is true. Defendant is guilty of a Grade B supervised release violation. I further find and conclude that Defendant's term of supervised release should be revoked and that he should be sentenced to imprisonment for a term of 6 months with no further term of supervised release. Any criminal history monetary penalties previously ordered in the final judgment should be imposed in this revocation, with all payments collected credited towards outstanding balances.
RECOMMENDATION
In light of the foregoing, it is recommended that Defendant's plea of true to Allegation 1 of the petition be ACCEPTED and that Defendant's term of supervised release be REVOKED. It is further recommended that Defendant be sentenced to imprisonment for a term of 6 months with no further term of supervised release. Any criminal monetary penalties previously ordered in the final judgment should be imposed in this revocation, with all payments collected credited towards outstanding balances. It is finally recommended that the Court request the Bureau of Prisons to designate Defendant at FCI Seagoville.
Before the conclusion of the hearing, the undersigned announced the foregoing recommendation and notified Defendant of his right to object to this Report and Recommendation and to be present and allocute before being sentenced by the Court. Defendant waived those rights and executed a written waiver in open court. The Government also waived its right to object to the Report and Recommendation. It is therefore recommended that the Court revoke Defendant's supervised release and enter a Judgment and Commitment for him to be sentenced to imprisonment for a term of 6 months with no further term of supervised release.
So ORDERED and SIGNED this 20th day of November, 2024.