Opinion
CRIMINAL NO. 4:09-CR-142-ALM-KPJ
10-11-2019
UNITED STATES OF AMERICA v. JORGE FERNANDEZ-OLVER (14) aka Jesus Davila-Hernandez
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the Government's request for revocation of Defendant's supervised release. After the District Court referred the matter to this Court for a report and recommendation, the Court conducted a hearing on October 2, 2019, to determine whether Defendant violated his supervised release. Defendant was represented by Denise Benson. The Government was represented by William Tatum.
On April 20, 2012, Defendant was sentenced by the Honorable Richard Schell, United States District Judge, to a sentence of fifty-four (54) months imprisonment followed by a five (5) year term of supervised release for the offense of Conspiracy to Possess with Intent to Distribute Cocaine.
On June 18, 2018, the U.S. Probation Officer filed a Petition for Warrant or Summons for Offender under Supervision (the "Petition") (Dkt. 905). The Petition asserts that Defendant violated the following conditions of supervision: (1) Defendant shall not commit another federal, state, or local crime; (2) Defendant shall not unlawfully possess a controlled substance; (3) Defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; (4) Defendant shall not commit another federal, state, or local crime; and (5) Defendant shall, immediately upon release from confinement, be surrendered to a duly authorized immigration official for deportation proceedings in accordance with the established procedures provided by the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. If ordered deported, Defendant shall remain outside of the United States. In the event Defendant is not deported, or for any reason re-enters the country after having been deported, Defendant shall comply with all conditions of supervised release, to include reporting to the nearest United States Probation Office within 72 hours of release by immigration officials or re-entry into the country.
The Petition asserts that Defendant violated these conditions because: (1) on May 10, 2018, Defendant was Indicted in the Eastern District of Texas in Case No. 4:18CR-46 for Conspiracy to Possess with Intent to Manufacture and Distribute Methamphetamine, in violation of Title 21 U.S.C § 846; (2) after being deported on August 22, 2013, Defendant was arrested on June 13, 2016, by U.S. Border Patrol in Laredo, TX, for illegally reentering the United States, in violation of Title 8 U.S.C § 1326; (3) after having been deported on June 16, 2016, Defendant was again found illegally present in the United States on or about May 22, 2018, in violation of Title 8 U.S.C. § 1326, as evidenced by his arrest in the Eastern District of Texas Case No. 4:18CR-46; (4) Defendant failed to remain outside of the United States after he was deported on August 22, 2013, as evidenced by his arrest on June 13, 2016, by U.S. Border Patrol; and (5) Defendant failed to remain outside of the United States after he was deported on June 16, 2016, as evidenced by his arrest in the Eastern District of Texas Case No. 4:18CR-46 on or about May 22, 2018.
At the hearing, Defendant entered a plea of true to violation of allegation one (1). Defendant waived his right to allocute before the district judge and his right to object to the report and recommendation of this Court. The Court finds that Defendant has violated the terms of his supervised release.
RECOMMENDATION
Pursuant to the Sentencing Reform Act of 1984, and having considered the arguments presented at the October 2, 2019 hearing, the Court recommends that Defendant be committed to the custody of the Bureau of Prisons to be imprisoned for a term of twenty-four (24) months to run consecutively with the sentence in case number 4:18cr46, with no supervised release to follow.
The Court further recommends that Defendant shall serve his sentence at FCI Texarkana, if appropriate.
So ORDERED and SIGNED this 11th day of October, 2019.
/s/_________
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE