Opinion
CR 18-80-GF-BMM-JTJ
05-10-2021
UNITED STATES OF AMERICA, Plaintiff, v. JOE DON DEMONTINEY, Defendant.
FINDINGS AND RECOMMENDATIONS
John Johnston United States Magistrate Judge
I. Synopsis
Defendant Joe Don Demontiney (Demontiney) has been accused of violating the conditions of his supervised release. Demontiney admitted alleged violations 1, 2 and 5. The Court dismissed alleged violations 3, 4 and 6 on the government's motion. The government satisfied its burden of proof with respect to alleged violations 7 and 8. Demontiney's supervised release should be revoked. Demontiney should be placed in custody for 2 months, with 34 months of supervised release to follow. Demontiney should be subject to the same release conditions imposed previously. Demontiney should receive credit for time served.
II. Status
Demontiney pleaded guilty to being a Prohibited Person in Possession of a Firearm on January 29, 2019. (Doc. 33). The Court sentenced Demontiney to 12 months and 1 day of custody, followed by 3 years of supervised release. (Doc. 38). Demontiney's current term of supervised release began on August 4, 2020. (Doc. 61 at 1).
Petition
The United States Probation Office filed a Second Amended Petition on April 27, 2021, requesting that the Court revoke Demontiney's supervised release. (Doc. 61). The Second Amended Petition alleged that Demontiney had violated the conditions of his supervised release: 1) by consuming alcohol on two separate occasions; 2) by possessing heroin; 3) by committing two other crimes; 4) by using amphetamines; and 5) by using methamphetamine on two separate occasions.
Initial appearance
Demontiney appeared before the undersigned for his initial appearance on May 6, 2021. Demontiney was represented by counsel. Demontiney stated that he had read the petition and that he understood the allegations. Demontiney waived his right to a preliminary hearing. The parties consented to proceed with the revocation hearing before the undersigned.
Revocation hearing
The Court conducted a revocation hearing on May 6, 2021. Demontiney admitted that he had violated the conditions of his supervised release: 1) by consuming alcohol on two separate occasions; 2) by using amphetamines; and 3) by using methamphetamine on two separate occasions. The Court dismissed alleged violations 3, 4 and 6 on the government's motion. The government satisfied its burden of proof with respect to alleged violations 7 and 8. The violations that Demontiney admitted and that the government proved are serious and warrant revocation of Demontiney's supervised release.
Demontiney's violations are Grade C violations. Demontiney's criminal history category is III. Demontiney's underlying offense is a Class C felony. Demontiney could be incarcerated for up to 24 months. Demontiney could be ordered to remain on supervised release for up to 36 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 5 to 11 months.
III. Analysis
Demontiney's supervised release should be revoked. Demontiney should be incarcerated for 2 months, with 34 months of supervised release to follow. This sentence is sufficient but not greater than necessary. Demontiney should be subject to the same release conditions imposed previously. Demontiney should receive credit for time served.
IV. Conclusion
The Court informed Demontiney that the above sentence would be recommended to United States District Judge Brian Morris. The Court also informed Demontiney of his right to object to these Findings and Recommendations within 14 days of their issuance. The Court explained to Demontiney that Judge Morris would consider a timely objection before making a final determination on whether to revoke his supervised release and what, if any, sanction to impose.
The Court FINDS:
That Joe Don Demontiney violated the conditions of his supervised release: 1) by consuming alcohol on two separate occasions; 2) by using amphetamines; and 3) by using methamphetamine on two separate occasions.The Court RECOMMENDS:
That the District Court revoke Demontiney's supervised release and commit Demontiney to the custody of the United States Bureau of Prisons for 2 months, with 34 months of supervised release to follow. Demontiney should be subject to the same release conditions imposed previously. Demontiney should receive credit for time served.
NOTICE OF RIGHT TO OBJECT TO FINDINGS AND RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
The parties may serve and file written objections to the Findings and Recommendations within 14 days of their entry, as indicated on the Notice of Electronic Filing. 28 U.S.C. § 636(b)(1). A United States district court judge will make a de novo determination regarding any portion of the Findings and Recommendations to which objection is made. The district court judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district court judge, and may waive the right to appear and allocute before a district court judge.