Opinion
CR 19-02686-TUC-RM(BGM)
07-05-2022
United States of America, Plaintiff, v. Micaela Jolyn Macias, Defendant.
ORDER
Honorable Bruce G. Macdonald, United States Magistrate Judge.
Pending before the Court is a petition to Revoke Supervised Release (Doc. 77), filed on February 15, 2022, and a Superseding Petition to Revoke Supervised Release (Doc. 91) filed on June 30, 2022. An Evidentiary Hearing occurred before Magistrate Judge Macdonald on June 28, 2022. See Minute Entry 6/28/2022 (Doc.88). Defendant was present in person, in custody, and assisted by counsel. The Government presented two witnesses, United States Probation Officer Dennis Vroegh and Robert Edwards, Lead Security Monitor at Behavioral Systems Southwest, and admitted two exhibits into evidence (Exhibits 2 and 3). Micaela Jolyn Macias testified on her behalf. Pursuant to LR Crim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. See also 18 U.S.C. § 3401(i). The Magistrate Judge recommends that the District Judge, after her independent review, find the Defendant did violate certain terms of her Supervised Release.
I. BACKGROUND
On October 22, 2019, Defendant pled guilty to the felony offense of Conspiracy to Transport Illegal Aliens. See Minute Entry 10/22/2019 (Doc. 24). On January 13, 2020, the District Judge sentenced the Defendant to 12 months and one day in the Bureau of Prisons, with credit for time served, followed by 36 months of Supervised Release. See Judgment 1/13/2020 (Doc. 50). On January 13, 2022, the Defendant's Supervised Release was revoked and she was sentenced to seven months in the Bureau of Prisons, with credit for time served, followed by 24 months of Supervised Release See Judgment 1/13/2022(Doc. 76).
On June 24, 2022, Defendant's Probation Officer filed a Petition for Warrant (Doc. 77) alleging violations of the following conditions of Supervised Release:
Standard Condition No. 13: “You must follow the instructions of the probation officer related to the conditions of supervision.”
Special Condition No.6: “You must reside at and participate in a Residential Reentry Center, a residential substance abuse treatment program, a 12-step based halfway house, a sober-living environment, or any combination thereof as approved and directed by the probation officer for up to 180 days, unless discharged earlier by the probation officer. You must follow all rules and regulations. You shall contribute to the programming costs in an amount determined by the probation officer.”
Petition for Warrant (Doc. 77 at 1-2); Superseding Petition for Warrant (Doc. 91, at 1-2).
II. ANALYSIS
Allegation A - Standard Condition No. 13
This condition states: “You must follow the instructions of the probation officer related to the conditions of supervision.”
Allegation B - Special Condition No. 6
This condition states: “You must reside at and participate in a Residential Reentry Center, a residential substance abuse treatment program, a 12-step based halfway house, a sober-living environment, or any combination thereof as approve and directed by the probation officer for up to 180 days, unless discharged earlier by the probation officer. You must follow all rules and regulations. You shall contribute to programming costs in an amount determined by the probation officer.”
Discussion
The Probation Officer by letter to the Defendant dated January 18, 2022, instructed the Defendant to contact him within 72 hours of her release from CCA. She was further directed to report directly to Behavioral Systems Southwest (“BSSW”) for Residential Reentry Center (“RRC”) placement upon her release from custody and given the address of BSSW in Florence, Arizona.
Upon her release from CCA on January 27, 2022, the Defendant reported directly to BSSW in Florence as directed. Unfortunately, she was not allowed to check into BSSW Florence because the facility was on Covid quarantine status until January 29, 2022. The Defendant was advised by BSSW to return at a later date, and that she would need to present a negative Covid test before she could be admitted into the facility.
The Defendant did not have transportation from Florence, so she had to walk until she could find a ride to Casa Grande, Arizona, where she planned to stay until she could be admitted to BSSW. There is no doubt this was a hardship for the Defendant. She had to stay with a friend in Casa Grande.
The Defendant got a negative Covid test on January 29, 2022. She then presented to BSSW as directed on February 2, 2022.
The Defendant began and completed her initial security intake with Robert Edwards, Lead Security Monitor, but according to Mr. Edwards, while Ms. Macias was not rude or profane, she demonstrated a complete disregard for wanting to be at BSSW. When Mr. Edwards informed the Defendant that she would need to turn her cell phone over to him for the placement of the “Parent Program” on her phone, a process that can take from a few days to a week, she refused to give her phone to the security staff. A Case Manager then spoke with the Defendant about the rules and the need to turn her phone over until the Parent Program was in place on the phone and the contract was complete. The Defendant again refused to turn her phone over to the security staff. The Defendant then spoke on the phone to the Program Director at BSSW, Misty Damron, and Ms. Damron also informed the Defendant she needed to turn her phone over. The Defendant again refused to turn her phone over, stating she needed it to talk to her family members. The Defendant also said her granddaughter was in DCS custody and she needed the phone for video calls with her granddaughter. Ms. Damron explained that video call were allowed on the property and that she would need to talk to her Case Manager about these calls, but also again explained to the Defendant that she need to turn her phone over for the placement of the program. The Defendant again refused to turn over her phone and left the property.
In the late evening of February 2, 2022, the Probation Officer received a text message from the Defendant's daughter, Mercedes, notifying the Probation Officer that her mother had left BSSW.
On February 3, 2022, the Probation Officer spoke to Misty Damron at BSSW and Ms. Damron indicated the facility would give the Defendant a second chance to be admitted.
On February 3, 2022 at approximately 12:16 p.m. the Probation Officer spoke to the Defendant and told her BSSW was going to give her a second chance. The Probation Officer instructed the Defendant to report to BSSW by 5:00 p.m. that day. The Defendant failed to appear as directed and the Petition was filed.
It is unfortunate the Defendant was not able to be admitted to BSSW when she went to the facility straight from CCA on January 27, 2022, and this delay did seem to create a hardship for the Defendant. Nonetheless, she presented to BSSW as directed on February 2, 2022, but did not follow all the rules and regulations of the facility by refusing to hand her phone over for placement of the Parent Program and left the facility with the permission of the Probation Officer, Mr. Vroegh. She also failed to follow the instructions of the Probation Officer when she did not present to BSSW by 5:00 p.m. on February, 2022, as requested by Mr. Vroegh to do so.
The Court finds the Government has met its burden in establishing the Defendant violated the and Standard and Special Conditions of her Supervised Release.
III. RECOMMENDATION
Based on the foregoing and pursuant to 28 U.S.C. §636 (b) and 18 U.S.C. §3401 (i), the Magistrate Judge RECOMMENDS that the District Judge, after an independent review of the record, finds as follow:
1) The Defendant did violate Standard Condition No. 13 (Allegation A);
2) The Defendant did violate Special Condition No. 6 (Allegation B);
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 with 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 19-02686-TUC- RM.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fe. R. Crim. 59 may result in waiver of the right of review.