Opinion
CR-21-01459-001-TUC-CKJ (MAA)
01-08-2024
United States of America, Plaintiff, v. Nicole Shermaine Martinez, Defendant.
ORDER
HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE
The Court accepts and adopts the Magistrate Judge's Report and Recommendation (R&R) as the findings of fact and conclusions of law of this Court and finds that the Defendant violated the terms of her probation, Condition 1. The Court grants the Petition to Revoke (Doc. 82).
MAGISTRATE JUDGE'S RECOMMENDATION
On December 15, 2023, the Honorable Michael A. Ambri, United States Magistrate Judge, filed the R&R based on a guilty verdict by a jury in CR 23-0081-TUC-CKJ finding beyond a reasonable doubt that on January 15, 2023, that Defendant transported illegal aliens in violation of 8 U.S.C. 1324(a)(1)(A)(ii). At the time of the offense, the Defendant was on probation and subject to a mandatory condition that she must not commit another federal, state or local crime. The Magistrate Judge correctly concluded the guilty verdict shows by a preponderance of the evidence that Defendant violated a mandatory condition of her probation, Condition 1. See (Amend. R&R (Doc. 106) at 2 (applying preponderance standard; finding preponderance shown where the relevant fact is more probably true than not) (citations omitted). The Magistrate Judge concluded that the jury's finding that she did not commit the offense for financial gain does not change the conclusion that she violated Condition 1 of her probation. The Court agrees. Additionally, the Court finds that the Petition to Revoke provides notice of the basis for the alleged violation and provides details supporting the charge. Id. at 3.
STANDARD OF REVIEW
The duties of the district court in connection with a R&R are set forth in Rule 59 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed. R. Crim. P. 59(b)(3); 28 U.S.C. § 636(b)(1).
Where the parties object to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no objection is filed, the district court need not review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b), they had 14 days to file written objections. See also, Federal Rule of Criminal Procedure 59 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). To date, no objections have been filed, and therefore, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation).
CONCLUSION
While there are no objections and review has been waived, the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge's conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily waive question of law but is a factor in considering the propriety of finding waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters delegated to magistrate judge when there is clear error or recommendation is contrary to law). The Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated in the R&R, the Court finds the Defendant violated mandatory condition 1 of her probation and grants the Petition to Revoke Probation.
Accordingly, IT IS ORDERED that after a full and independent review of the record, the Magistrate Judge's R&R (Doc. 106) is accepted and adopted as the findings of fact and conclusions of law of this Court.
IT IS FURTHER ORDERED that the Petition to Revoke Probation is GRANTED.
IT IS FURTHER ORDERED that disposition of the revocation of probation in this case shall be set at the same time and place as sentencing is set in CR 23-00081 TUC CKJ, which is: January 22, 2024, at 10:00 am.
IT IS FURTHER ORDERED that the Probation Department shall prepare a disposition report.