Opinion
Cause No. 1:11-cr-0133-JMS-DML-01 Cause No. 1:11-cr-0189-JMS-DML-1
01-13-2017
UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS W. MCEWEN, Defendant.
REPORT AND RECOMMENDATION
On January 10, 2017, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on December 12, 2016. Defendant McEwen appeared in person with his appointed counsel Joseph Cleary. The government appeared by Winfield Ong, Assistant United States Attorney. U. S. Parole and Probation appeared by Officer Shelly McKee.
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 McEwen of his rights and provided him with a copy of the petition. Defendant McEwen waived his right to a preliminary hearing.
2. After being placed under oath, Defendant McEwen admitted violations 1, 2, and 3. [Docket No. 19.]
3. The allegations to which Defendant admitted, as fully set forth in the petition, are:
| ViolationNumber | Nature of Noncompliance |
|---|---|
| 1 | "The defendant shall refrain from any unlawful use of a controlledsubstance."As previously reported to the Court, on April 11, 20, October 12, and 26,2016, the offender provided urine specimens which tested positive forOpiates and amphetamine. Mr. McEwen admitted using heroin andmethamphetamine. On June 30, 2016, he submitted a urine sample whichtested positive for cocaine, opiates, amphetamine, and marijuana. Mr.McEwen admitted using the illegal drugs. On October 25, 2016, Mr.McEwen self-reported additional use of heroin and methamphetamine onOctober 22, and 23, 2016. |
| 2 | "The defendant shall participate in a substance abuse treatmentprogram at the direction of the probation officer, which may includeno more than eight drug tests per month. The defendant shall abstainfrom the use of all intoxicants, including alcohol while participating ina substance abuse treatment program. The defendant is responsiblefor paying a portion of the fees of substance abuse testing and/ortreatment."On November 15, 22, 28, 29, 30, December 2, 3, 4, 5, 6, and 7, 2016, theoffender failed to report for scheduled drug screens. In addition, he failedto produce a specimen on November 24, 2016, after several collectionattempts. Lastly, on November 21, 28, 30, December 3, 5, and 7, 2016, theoffender failed to attend required counseling sessions.As previously reported to the Court, on July 25, September 7, and October31, 2016, the offender failed to report for scheduled drug screens. Inaddition, he failed to report for scheduled individual substance abusecounseling sessions during the month of July, August, and October, 2016.Lastly, the offender has failed to remit a payment toward his co-pay andrelapse fee obligations, which should have been paid in full by July 10,2016. |
| 3 | "The defendant shall pay any restitution that is imposed by thisjudgment and that remains unpaid at the commencement of the termof supervised release."Since the Court was previously notified on November 8, 2016, the offenderhas failed to remit any restitution payments. |
| As previously reported to the Court, since the offender's term of supervisedrelease commenced, he has remitted two payments totaling $70. A paymentplan was established where the offender was to remit monthly paymentsbeginning May 10, 2016. |
4. The parties stipulated that:
(a) The highest grade of violation is a Grade B violation.
(b) Defendant's criminal history category is I.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 4 to 10 months' imprisonment.
5. The government argued for a sentence of ten (10) months with no supervised release to follow. The defendant argued for a sentence of four (4) months to be served at the Volunteers of America
The Magistrate Judge, having considered the factors in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions in the petition, that his supervised release should be revoked, and that he should be sentenced to the custody of the Attorney General or his designee for a period of ten (10) months with no supervised release to follow. The Defendant is to be taken into custody immediately 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 waived the fourteen-day period to object to the Report and Recommendation.
Dated: 1/13/2017
/s/_________
Denise K. LaRue
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