Opinion
CR. 14-00083-WES
09-12-2024
UNITED STATES OF AMERICA v. ALLARICK HILL
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, United States Magistrate Judge.
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) and 18 U.S.C. § 3401(i) for proposed findings of fact concerning whether Defendant is in violation of the terms of his supervised release and, if so, to recommend a disposition of this matter. In compliance with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1, a revocation hearing was held on July 15, 2024, at which time Defendant, through counsel and personally, admitted that he was in violation of his supervised release conditions. At the hearing, I ordered Defendant detained pending my Report and Recommendation and final sentencing before District Judge William E. Smith.
Background
On October 7, 2019, the Probation Office petitioned the Court for the issuance of an arrest warrant. On October 8, 2019, the District Court reviewed the request and ordered the issuance of a warrant. On July 15, 2024, Defendant was brought before the Court for a revocation hearing at which time he admitted to the following charges:
Violation No. 1. Standard Condition: Defendant must report to the Probation Officer as instructed.
Defendant failed to report to the Probation Office as directed and has not made himself available for supervision since July 30, 2019. His whereabouts were unknown until his arrest in North Carolina on May 14, 2024.
Violation No. 2. Mandatory Condition: Defendant must not commit another federal, state, or local crime.
Defendant committed the offense of Driving with a Suspended License as evidenced by his arrest on May 24, 2019 by the Lincoln Police Department.
Violation No. 3. Mandatory Condition: Defendant must not commit another federal, state, or local crime.
Defendant committed the offense of Driving with a Suspended License, 5th Offense, as evidenced by his arrest on August 5, 2019 by the Cumberland Police Department.
Violation No. 4. Special Condition: Defendant shall participate in a program of substance abuse treatment (inpatient or outpatient basis) as directed and approved by the Probation Office. Defendant shall contribute to the costs of such treatment based on ability to pay as determined by the Probation Officer.
Defendant failed to attend dual treatment sessions at Fellowship Health Resources from May 14, 2019 until his subsequent termination on August 16, 2019.
Violation No. 5. Special Condition: Defendant shall participate in a program of substance abuse testing (up to seventy-two drug tests per year) as directed and approved by the Probation Office. Defendant shall contribute to the costs of such treatment based on ability to pay as determined by the Probation Officer.
Defendant used cocaine on July 30, 2019 as evidenced by his positive test result.
As Defendant has admitted these charges, I find he is in violation of the terms and conditions of his supervised release.
Recommended Disposition
Section 3583(e)(2) provides that if the Court finds that Defendant violated a condition of supervised release, the Court may extend the term of supervised release if less than the maximum term was previously imposed. The maximum term of supervised release was previously imposed; therefore, the term cannot be extended.
Section 3583(e)(3), provides that the Court may revoke a term of supervised release and require the Defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post release supervision, if the Court finds by a preponderance of evidence that the defendant has violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be sentenced to a term beyond 5 years if the instant offense was a Class A felony, 3 years for a Class B felony, 2 years for a Class C or D felony, or more than one year for a Class E felony or a misdemeanor. Defendant was on supervision for a Class D felony. Therefore, he may not be required to serve more than two-years' imprisonment upon revocation.
Pursuant to 18 U.S.C. § 3583(h) and § 7B1.3(g)(2), when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized, the Court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. The authorized statutory maximum term of supervised release is three years. Defendant previously served thirteen days of imprisonment on a violation. Therefore the Court may impose the abovenoted statutory maximum, minus the term of imprisonment that is to be imposed for this revocation.
Section 7B1.1 provides for three grades of violations (A, B, and C). Subsection (b) states that where there is more than one violation, or the violation includes more than one offense, the grade of violation is determined by the violation having the most serious grade.
Section 7B1.1(a) notes that a Grade A violation constitutes conduct (A) which is punishable by a term of imprisonment exceeding one year that (i) is a crime of violence; (ii) is a controlled substance offense; or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a) or any other offense punishable by a term of imprisonment exceeding twenty years. Grade B violations are conduct constituting any other offense punishable by a term of imprisonment exceeding one year. Grade C violations are conduct constituting an offense punishable by a term of imprisonment of one year or less; or a violation of any other condition of supervision.
Section 7B1.3(a)(1) states that upon a finding of a Grade A or B violation, the Court shall revoke supervision. Subsection (a)(2) provides that upon a finding of a Grade C violation, the court may revoke, extend, or modify the conditions of supervision. Defendant has committed Grade C violations and the statutory maximum term of supervised release has already been imposed. Therefore, the Court may not extend supervision, but may revoke or modify supervision.
Section 7B1.3(c)(1) provides that where the minimum term of imprisonment determined under § 7B1.4 is at least one month, but not more than six months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5C1.1(e) for any portion of the minimum term. Should the Court find that Defendant has committed a Grade B or C violation, § 7B1.3(c)(2) states that where the minimum term of imprisonment determined under § 7B1.4 is more than six months but not more than ten months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in §5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment. The second provision which allows for alternatives for one-half of the minimum term applies to this matter.
Section 7B1.3(d) states that any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under § 7B1.4 (Term of Imprisonment), and any such unserved period of confinement or detention may be converted to an equivalent period of imprisonment. There is an outstanding restitution amount of $812,837.18.
Section 7B1.4(a) provides that the criminal history category is the category applicable at the time Defendant was originally sentenced. Defendant had a Criminal History Category of IV at the time of sentencing.
Should the Court revoke supervised release, the Revocation Table provided for in § 7B1.4(a) provides the applicable imprisonment range. Defendant committed Grade C violations and has a Criminal History Category of IV. Therefore, the applicable guideline range of imprisonment for this violation is six to twelve months.
Section 7B1.5(b) provides that, upon revocation of supervised release, no credit shall be given toward any term of imprisonment ordered, for time previously served on postrelease supervision.
Analysis and Recommendation
This is Defendant's second instance of absconding from supervision. He received a relatively lenient sentence after the first instance (ECF No. 24) and thereafter had a short and unproductive stint with HOPE Court. He again absconded in 2019 - a mere ten months after completing his first violation sentence. It appears that, due to his history of absconding, Defendant has only served a total of approximately twelve months on supervised release since completing his fraud sentence in 2017.
Defendant has admitted to Grade C violations, and the guideline range is six to twelve months. The Government argues for a six-month sentence. The defense asks for three months plus three months on home detention. Both sides agree that no further supervision is warranted in this ten-year-old case.
This is a difficult decision. On the positive, Defendant has not picked up any new arrests in the five years since he absconded and has reportedly been living in North Carolina working and supporting his two children. On a negative, Defendant has twice chosen to abscond from his supervision obligations, and the Court needs to send a message of deterrence to those under supervision that absconding has consequences. On balance, the Court finds that a four-month sentence with no further supervised release sends a sufficient message of deterrence but also acknowledges Defendant's productivity and apparent good behavior in recent years, and I so recommend to District Judge Smith.
Conclusion
After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), I recommend that Defendant be sentenced to a term of four months' incarceration followed by no further supervised release.
Defendant has been held since his arrest on May 14, 2024 and has served approximately two of the four months at this point.
Any objections to this Report and Recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen days of service of this Report and Recommendation. See Fed. R. Crim. P. 59(b); DRI LR Cr 57.2(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008).