Opinion
CR 16-02235-002-TUC-RCC (EJM)
06-21-2021
United States of America, Plaintiff, v. Miranda Lewis, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is a Supervised Release Petition which alleges that the defendant, Miranda Lewis, violated the conditions of her supervised release. On June 16, 2021, the Court held an evidentiary hearing regarding the allegations in the petition.
For the reasons that follow, the Court recommends that the District Court conclude that Ms. Lewis violated her conditions of supervised release.
On May 15, 2018, the defendant was sentenced on a felony drug offense to 24 months in prison to be followed by a 36-month term of supervised release. On September 9, 2018, the District Court amended the defendant's sentence to time served under Fed. R. Crim. P. 35(b)(1). On May 26, 2020, the defendant's supervised release was revoked, and she was sentenced to time served and 24 months of supervised release, which began on the day of sentencing. On December 15, 2020, the instant Supervised Release Petition was filed which alleges the following violations: (1) the defendant's failure to notify the probation officer prior to changing her residence; (2) the defendant's failure to participate in a substance abuse treatment assessment; and (3) the defendant's failure to participate in a mental health treatment assessment.
On June 16, 2021, an evidentiary hearing was held on these alleged violations. Probation Officer Mendi Leigh was the only witness at the hearing. For the reasons noted below, the Court finds that Probation Officer Leigh's testimony and the exhibits admitted during her testimony prove by a preponderance of the evidence that the defendant violated all three conditions of her supervised release.
1. Failure to Notify the Probation Officer of a Change in Residence.
The first violation alleged is a violation of Standard Condition #5, changing residences without prior approval of her probation officer, and as a result, failing to reside at a place approved by the probation officer. Probation Officer Leigh testified that on or about November 9, 2020, the defendant moved from the residence on file with the probation officer without prior permission. After Ms. Leigh could not locate the defendant, she left a message with a family member asking the defendant to contact her. On November 10, 2020, the defendant called Ms. Leigh and advised that she was residing with her boyfriend's family in Topowa, a village on the Tohono O'odham Nation. Ms. Leigh testified that the defendant never received permission to change her residence or notified her of the anticipated change of residence. Ms. Leigh testified that she asked the defendant to provide her with information regarding her boyfriend and the location of the residence. The defendant agreed to do so, but she never provided the requested information.
The Court finds that Probation Officer Leigh's testimony establishes by a preponderance of the evidence that the defendant violated Standard Condition #5, by both failing to notify her probation officer of planned change of residence, and as a result, failing to reside at a residence approved by her probation officer. As such, the Court recommends that the District Court conclude that the defendant violated this supervised release condition.
2. Failure to Participate in a Substance Abuse Treatment Assessment and a Mental Health Assessment.
The second and third violations alleged are related: (1) Special Condition #1, failing to participate in a substance abuse treatment assessment; and (2) Special Condition #5, failing to participate in a mental health assessment. Ms. Leigh testified that on June 3, 2020, the defendant was provided with a Treatment Services Non-Contract Program Plan with Tohono O'odham Behavioral Health for both substance abuse treatment and mental health treatment. (Ex. 1.)
Ms. Leigh testified that the defendant requested that substance abuse and mental health treatment instead be provided by Behavioral Systems Southwest ("BSS"). As a result, on or about June 11, 2020, Ms. Leigh provided the defendant with a Treatment Services Contract Program Plan with BSS. (Ex. 2.) Ms. Leigh testified that on July 24, 2020, she received an email from BSS stating that the facility had left several messages for the defendant to schedule her assessments. (Ex. 3.) The defendant did not contact BSS to schedule the assessments.
On or about October 1, 2020, Ms. Leigh provided the defendant with a Treatment Services Contract Program Plan for H&H Treatment Programs ("H&H"). (Ex. 4.) Ms. Leigh explained that she referred the defendant to H&H because it was closer to the defendant's residence in Sells, Arizona. Ms. Leigh testified that she communicates with staff at H&H several times a week, and was advised that the defendant has never participated in a mental health or substance abuse treatment assessment with H&H.
The Court finds that Probation Officer Leigh's testimony and exhibits admitted at the hearing establish by a preponderance of the evidence that the defendant violated Special Condition #1 and Special Condition #5 by failing to participate in both a substance abuse treatment assessment and a mental health assessment. As such, it is recommended that the District Court conclude that the defendant violated these supervised release conditions.
The Court notes that defense counsel elicited testimony from Probation Officer Leigh regarding the significant challenges the defendant faced while on supervised release. They include: (1) the defendant suffers from several serious medical conditions; (2) the defendant is still depressed about her son's suicide in 2017 and the recent death of another family member; (3) the defendant's residence that she was living in prior to moving in with her boyfriend was essentially uninhabitable; (4) the defendant's disability benefits, which are her only income, were cut off during her incarceration and only recently re-started; and (5) the defendant does not own a phone. As this Court noted at the conclusion of the hearing, these many hardships will likely be mitigating evidence at sentencing, but they do not affect the Court's conclusion that the defendant violated her supervised release conditions.
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR 16-02235-TUC-RCC.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.
Dated this 21st day of June, 2021.
/s/_________
Eric J. Markovich
United States Magistrate Judge