Opinion
Cause No. 3:08-cr-0007-RLY-CMM
10-04-2017
UNITED STATES OF AMERICA, Plaintiff, v. RICHARD L. MARZULLO, Defendant.
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REPORT AND RECOMMENDATION
On October 3, 2017, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on February 7, 2017. Defendant Marzullo appeared in person with his appointed counsel Michael Donahoe. The government appeared by Kendra Klump, Assistant United States Attorney. U.S. Parole and Probation appeared by Officer Chris Dougherty.
The Court conducted the following procedures in accordance with Fed. R. Crim. P. 32.1(a)(1) and 18 U.S.C. § 3583:
1. The Court advised Defendant Marzullo of his rights and ensured he had a copy of the Petition. Defendant Marzullo orally waived his right to a preliminary hearing.
2. After being placed under oath, Defendant Marzullo admitted violation no. 1 as set forth in the Petition. [Docket No. 77.]
3. The allegations to which Defendant admitted, as fully set forth in the Petition, are:
| ViolationNumber | Nature of Noncompliance |
|---|---|
| 1 | "The defendant shall report to the probation officer in the manner andfrequency directed by the probation officer."The offender appears to have absconded from supervision. He was residingat Volunteers of America (VOA), as a condition of his supervision. OnJanuary 26, 2017, the offender advised VOA staff that he believed he washaving a medical emergency, and he was subsequently transported toEskenazi Hospital by ambulance and admitted. The offender wasdischarged from the hospital the next day, on January 27, 2017, however,he did not return to VOA after his hospital discharge. The probation officedid not become aware of this information until February 3, 2017. Theoffender has made no contact with the probation office since his dischargefrom the hospital. |
4. The government orally moved to dismiss violation no. 2 and the same was granted.
5. The Court finds that:
(a) The highest grade of violation is a Grade C violation.
(b) Defendant's criminal history category is VI.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 8 to 14 months' imprisonment.
6. Parties jointly recommended a sentence of twenty-four 24 months imprisonment, with no supervised release to follow. Defendant requested placement at FMC Butner, North Carolina.
The Magistrate Judge, having considered the factors set forth in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions of his supervised release as set forth in violation no. 1 of the Petition, and recommends that Defendant's supervised release be revoked, and that he be sentenced to the custody of the Attorney General or his designee for a period of twenty-four (24) months, with no supervised release to follow. As justification for the upward departure from the guideline range of imprisonment, the Magistrate Judge recognizes (1) the parties' agreement as to the proper sentence; (2) Defendant's lengthy criminal history; (3) Defendant's history of multiple failures to appear; and (4) Defendant's repeated history of failure to comply with release conditions.
The Magistrate Judge further recommends Defendant's placement at FMC Butner, North Carolina due to Plaintiff's significant and chronic health conditions.
The Defendant was taken into custody immediately, and will be detained pending the District Judge's action on this Report and Recommendation.
The parties are hereby notified that the District Judge may reconsider any matter assigned to a Magistrate Judge. The parties have fourteen days after being served a copy of this Report and Recommendation to serve and file written objections with the District Judge.
Dated: 4 OCT 2017
/s/_________
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana Distribution: All ECF-registered counsel of record via email generated by the court's ECF system United States Probation Office, United States Marshal