Opinion
CASE NO. 1:07-CR-104
07-13-2017
UNITED STATES OF AMERICA v. DEWAYNE JOSEPH BROWN
FINDINGS OF FACT AND RECOMMENDATION ON PLEA OF TRUE BEFORE THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and the Local Rules for the District Court, Eastern District of Texas, the District Court referred this matter for hearing and the submission of findings of fact and a report and recommendation pursuant to 18 U.S.C. §§ 3401(i) and 3583(e). The United States alleges that the defendant, Dewayne Joseph Brown, violated conditions of supervised release imposed by United States District Judge Marcia A. Crone. The United States Probation Office filed its First Amended Petition for Warrant or Summons for Offender Under Supervision (doc. #116) requesting the revocation of the defendant's supervised release.
The Court conducted a hearing on July 12, 2017, in accordance with Federal Rules of Criminal Procedure 11, 32 and 32.1. The defendant was present and represented by counsel at the hearing. Having heard the evidence, this court factually finds that the defendant has violated conditions of supervision and recommends that such violation warrants the revocation of his supervised release.
After conducting the proceeding in the form and manner prescribed by Federal Rule of Criminal Procedure11, the Court finds:
a. That the defendant, after consultation with counsel of record, has knowingly, freely and voluntarily consented to the administration of the plea of true in this cause by a United States Magistrate Judge subject to a final approval and imposition of sentence by the District Court.
b. That the defendant is fully competent and capable of entering an informed plea, that the defendant is aware of the nature of the charges and the consequences of the plea, that his plea of true is a knowing and voluntary plea, not the result of force or threats, and that the plea is supported by an independent evidentiary basis in fact establishing each of the essential elements of the conduct.
STATEMENT OF REASONS
A. Procedural History
Judge Crone sentenced Mr. Brown on June 6, 2009, after he pled guilty to the offense of conspiracy to possess with intent to distribute 5 grams or more but less than 50 grams of cocaine, a Class B felony. The Court sentenced the defendant to 87 months imprisonment, to be followed by a four (4) year term of supervised release subject to the standard conditions of release, plus special conditions to include a $100 special assessment, financial disclosure and participation in a program of drug testing and treatment. On October 16, 2014, Mr. Brown completed his period of imprisonment and began service of the supervision term.
The following is a summary of Mr. Brown's term of supervised release to date.
On December 4, 2014, Mr. Brown satisfied his originally imposed drug treatment condition. On March 5, 2015, the Court modified Mr. Brown's conditions to include mental health treatment. On September 22, 2016 Mr. Brown satisfied his mental health treatment condition.
The Court again modified Mr. Brown's conditions on April 27, 2015, to include 180 days halfway house placement. Mr. Brown satisfied his halfway house requirement on November 20, 2015.
B. Allegations in Petition
The United States Probation Office alleges that Mr. Brown violated a mandatory condition of supervised release as follows:
The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment or placement on probation and at least two periodic drug tests thereafter, as directed by the probation officer.
Specifically, the petition alleges on April 22, 2015, Mr. Brown tested positive for marijuana and synthetic marijuana. He signed admission forms admitting to the use of both substances approximately a week prior.
C. Evidence presented at Hearing:
At the hearing, the Government proffered evidence in support of the above-stated allegations. Specifically, the Government would submit evidence and testimony supporting the allegation that Mr Brown provided a urine sample on April 22, 2015, which tested positive for marijuana and synthetic marijuana and that Mr. Brown admitted to the use of both substances a week prior to submitting the urine specimen. In support, the Government also offered a document entitled Response to Allegation of Violations of Conditions of Supervision signed by Mr. Brown in which he admits to using synthetic marijuana and marijuana one week prior to April 22, 2015. That document was made part of the record as an exhibit at the revocation hearing.
Defendant, Dewayne Joseph Brown, offered a plea of true to the allegations. Specifically, he agreed with the evidence summarized above and pled true to the allegation that he used a controlled substance in violation of his supervision conditions.
D. Sentencing Guidelines; Findings and Recommended Disposition
The allegations, supporting evidence and plea of true warrant revocation of supervised release. See 18 U.S.C. § 3583(h). The Court factually finds by a preponderance of the evidence that the defendant violated a mandatory condition of his supervision by using a controlled substance. This conduct constitutes a Grade C violation under U.S.S.G. § 7B1.3(a)(2). Upon finding a Grade C violation, the Court may revoke the defendant's supervised release. See U.S.S.G. § 7B1.3(a)(2).
Based upon the Defendant's criminal history category of IV and the Grade C violation, the sentencing guidelines suggest a sentence of imprisonment for a period ranging from 6 to 12 months. See U.S.S.G. § 7B1.4(a). Because the original offense of conviction was a Class B felony, the statutory maximum imprisonment term upon revocation is three (3) years. See 18 U.S.C. § 3583(e)(3).
The Fifth Circuit states that Chapter 7 of the Sentencing Guidelines regarding the revocation of supervised release is advisory only. See United States v. Cade, 279 F.3d 265, 271 n.2 (5th Cir. 2002) (citing United States v. Montez, 952 F.2d 854, 859 (5th Cir. 1992); United States v. Headrick, 963 F.2d 777, 782 (5th Cir. 1992)). Because Chapter 7 was promulgated as an advisory policy statement and there are no applicable guidelines for sentencing after revocation of supervised release, the Court may impose a greater or lesser sentence upon revocation. United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir. 2001). Further, a sentence imposed for revocation will be upheld unless it is in violation of the law or plainly unreasonable. Id. See also United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997) (citations omitted).
Here, the evidence and the defendant's own admission supports a finding that the defendant violated his supervision conditions. Mr. Brown pled true, agreed with the Court's recommended sentence for that violation, and waived his right to allocute before the District Court.
Accordingly, based upon the defendant's plea of true, the agreement of the parties, and the evidence presented in this case, it is the recommendation of the undersigned United States Magistrate Judge that the District Court accept the plea of true and revoke Defendant's supervised release. The undersigned further recommends that the District Court order Defendant to serve a term of nine (9) months imprisonment for the revocation, with no additional term of supervised release to follow.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within fourteen (14) days after being served with a copy of this report. See 28 U.S.C. § 636(b)(1). A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, see Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error of unobjected-to factual findings and legal conclusions accepted by the district court, see Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). The constitutional safeguards afforded by Congress and the courts require that, when a party takes advantage of his right to object to a magistrate's findings or recommendation, a district judge must exercise its nondelegable authority by considering the actual evidence and not merely by reviewing and blindly adopting the magistrate judge's report and recommendation. See Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983); United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981) (per curiam).
SIGNED this the 13rd day of July, 2017.
/s/_________
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
See U.S. Sentencing Guidelines Manual, Ch. 7, pt. A, cmt. 1 ("At this time, the Commission has chosen to promulgate policy statements only.")