Opinion
CR 16-13-GF-BMM-JTJ
08-09-2023
UNITED STATES OF AMERICA, Plaintiff, v. DEREK JAMES RIGHT HAND, Defendant.
FINDINGS AND RECOMMENDATIONS
John Johnston, Judge.
I. Synopsis
Defendant Derek James Right Hand (Right Hand) has been accused of violating the conditions of his supervised release. Right Hand admitted all of the alleged violations. Right Hand's supervised release should be revoked. Right Hand should be placed in custody for 10 months, with 6 months of supervised release to follow. Right Hand should serve his term of custody at FCI Herlong in Herlong, California. Right Hand should serve his 6-month term of supervised release in a residential re-entry center.
II. Status
Right Hand pleaded guilty to Aggravated Sexual Abuse on April 7, 2016. (Doc. 23). The Court sentenced Right Hand to 50 months of custody, followed by 5 years of supervised release. (Doc. 30). Right Hand's current term of supervised release began on September 13, 2022. (Doc. 83 at 3).
Petition
The United States Probation Office filed an Amended Petition on June 28, 2023, requesting that the Court revoke Right Hand's supervised release. (Doc. 83). The Amended Petition alleged that Right Hand had violated the conditions of his supervised release: 1) by viewing materials depicting sexually explicit conduct; 2) by failing to successfully complete his sex offender treatment program; 3) by failing to report for substance abuse treatment on two separate occasions; 4) by failing to report for substance abuse testing; 5) by failing to comply with the terms of his home confinement; 6) by consuming alcohol; and 7) by failing to maintain full-time employment.
Initial appearance
Right Hand appeared before the undersigned for his initial appearance on the Amended Petition on August 8,2023. Right Hand was represented by counsel. Right Hand stated that he had read the petition and that he understood the allegations. Right Hand 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 August 8, 2023. Right Hand admitted that he had violated the conditions of his supervised release: 1) by viewing materials depicting sexually explicit conduct; 2) by failing to successfully complete his sex offender treatment program; 3) by failing to report for substance abuse treatment on two separate occasions; 4) by failing to report for substance abuse testing; 5) by failing to comply with the terms of his home confinement; 6) by consuming alcohol; and 7) by failing to maintain full-time employment. The violations are serious and warrant revocation of Right Hand's supervised release.
Right Hand's violations are Grade C violations. Right Hand's criminal history category is II. Right Hand's underlying offense is a Class A felony. Right Hand could be incarcerated for up to 60 months. Right Hand could be ordered to remain on supervised release for up to 44 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 4 to 10 months.
III. Analysis
Right Hand's supervised release should be revoked. Right Hand should be incarcerated for 10 months, with 6 months of supervised release to follow. This sentence is sufficient but not greater than necessary. Right Hand should serve his term of custody at FCI Herlong in Herlong, California. Right Hand should serve his 6-month term of supervised release in a residential re-entry center.
IV. Conclusion
The Court informed Right Hand that the above sentence would be recommended to Chief United States District Judge Brian Morris. The Court also informed Right Hand of his right to object to these Findings and Recommendations within 14 days of their issuance. The Court explained to Right Hand 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. Right Hand stated that he wished to waive his right to object to these Findings and Recommendations, and that he wished to waive his right to allocute before Judge Morris.
The Court FINDS:
That Derek James Right Hand violated the conditions of his supervised release: by viewing materials depicting sexually explicit conduct; by failing to successfully complete his sex offender treatment program; by failing to report for substance abuse treatment on two separate occasions; by failing to report for substance abuse testing; by failing to comply with the terms of his home confinement; by consuming alcohol; and by failing to maintain fulltime employment.
The Court RECOMMENDS:
That the District Court revoke Right Hand's supervised release and commit Right Hand to the custody of the United States Bureau of Prisons for 10 months, with 6 months of supervised release to follow. Right Hand should serve his term of custody at FCI Herlong in Herlong, California. Right Hand should serve his 6-month term of supervised release in a residential re-entry center.
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.