Opinion
CR 18-81-GF-BMM-JTJ
04-14-2021
UNITED STATES OF AMERICA, Plaintiff, v. LARRY RAY DENNY, JR., Defendant.
FINDINGS AND RECOMMENDATIONS
I. Synopsis
Defendant Larry Ray Denny, Jr. (Denny) has been accused of violating the conditions of his supervised release. Denny admitted all of the alleged violations, except alleged violation 3. The Court dismissed alleged violation 3 on the government's motion. Denny's supervised release should be revoked. Denny should be placed in custody for 5 months, with 26 months of supervised release to follow.
II. Status
Denny pleaded guilty on January 29, 2019, to Domestic Abuse by a Habitual Offender. (Doc. 51). The Court sentenced Denny to 8 months of custody, followed by 3 years of supervised release. (Doc. 81). Denny's current term of supervised release began on May 19, 2020. (Doc. 110 at 2).
Petition
The United States Probation Office filed an Amended Petition on March 24, 2021, requesting that the Court revoke Denny's supervised release. (Doc. 110). The Amended Petition alleged that Denny had violated the conditions of his supervised release: 1) by failing to report to his probation officer as directed; 2) by failing to report for substance abuse testing; 3) by committing another crime; 4) by consuming alcohol; 5) by failing to following the instructions of his probation officer; 6) by using methamphetamine; and 7) by failing to complete his substance abuse treatment program.
Initial appearance
Denny appeared before the undersigned for his initial appearance on April 13, 2021. Denny was represented by counsel. Denny stated that he had read the petition and that he understood the allegations. Denny 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 April 13, 2021. Denny admitted that he had violated the conditions of his supervised release: 1) by failing to report to his probation officer as directed; 2) by failing to report for substance abuse testing; 3) by consuming alcohol; 4) by failing to following the instructions of his probation officer; 5) by using methamphetamine; 6) by failing to complete his substance abuse treatment program. The Court dismissed alleged violation 3 on the government's motion. The violations that Denny admitted are serious and warrant revocation of Denny's supervised release.
Denny's violations are Grade C violations. Denny's criminal history category is III. Denny's underlying offense is a Class D felony. Denny could be incarcerated for up to 24 months. Denny could be ordered to remain on supervised release for up to 31 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 5 to 11 months.
III. Analysis
Denny's supervised release should be revoked. Denny should be incarcerated for 5 months, with 26 months of supervised release to follow. This sentence is sufficient but not greater than necessary.
IV. Conclusion
The Court informed Denny that the above sentence would be recommended to United States District Judge Brian Morris. The Court also informed Denny of his right to object to these Findings and Recommendations within 14 days of their issuance. The Court explained to Denny 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 Larry Ray Denny, Jr. violated the conditions of his supervised release: by failing to report to his probation officer as directed; by failing to report for substance abuse testing; by consuming alcohol; by failing to following the instructions of his probation officer; by using methamphetamine; and by failing to complete his substance abuse treatment program.The Court RECOMMENDS:
That the District Court revoke Denny's supervised release and commit Denny to the custody of the United States Bureau of Prisons for 5 months, with 26 months of supervised release to follow.
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.
DATED this 14th day of April, 2021.
/s/_________
John Johnston
United States Magistrate Judge