Opinion
CR 22-00121-WES
05-07-2024
UNITED STATES OF AMERICA v. KEVIN PINA
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, UNITED STATES MAGISTRATE JUDGE
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) and 18 U.S.C. § 3401(i) for proposed findings of fact concerning whether Defendant is in violation of the terms of his supervised release and, if so, to recommend a disposition of this matter. In compliance with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1, a revocation hearing was held on April 25, 2024, at which time Defendant, through counsel and personally, admitted that he was in violation of his supervised release conditions. At the hearing, I ordered Defendant released pending my Report and Recommendation and final sentencing before District Judge William E. Smith.
On November 14, 2023, the Probation Office petitioned the Court for the issuance of an arrest warrant. On that date, the District Court reviewed the request and ordered the issuance of a warrant. Defendant appeared before the Court for a revocation hearing on April 25, 2024 at which time he admitted to the following two charges:
Violation No. 3. Mandatory Condition: Defendant must refrain from any unlawful use of a controlled substance.
Defendant used cocaine on October 28, 2023 as evidenced by his admissions to Officer Dufresne. Additionally, Defendant refused to submit to drug testing on October 30, 2023.
At the April 25, 2025 hearing, the Government made an oral motion to amend Violation No. 2 as follows:
Violation No. 2. Mandatory Condition: Defendant must not commit another federal, state, or local crime.
On October 31, 2023, Defendant committed the offenses of Domestic Violence - Simple Assault and/or Battery (misdemeanor), Domestic Violence - Disorderly Conduct (misdemeanor), and Domestic Violence - Criminal Violation of No Contact Order (misdemeanor) as evidenced by his arrest by Pawtucket Police on November 6, 2023.
Also at the April 25, 2024 hearing, the Government made an oral motion to dismiss the following charge:
Violation No. 1. Mandatory Condition: Defendant must not commit another federal, state, or local crime.
On October 26, 2023, Defendant committed the offenses of Domestic Violence - Simple Assault and/or Battery (misdemeanor), Domestic Violence - Vandalism (misdemeanor), Domestic Violence -Disorderly Conduct (misdemeanor), and Domestic Violence - Refusal to Relinquish/Damage/ Obstruct Telephone (misdemeanor), as evidenced by his arrest by Pawtucket Police on October 26, 2023.
The Government's oral motion to dismiss this violation charge was GRANTED.
As Defendant has admitted Violation Charge 2 (as amended) and Charge 3, I find he is in violation of the terms and conditions of his supervised release.
Recommended Disposition
Section 3583(e)(2) provides that if the Court finds that Defendant violated a condition of supervised release, the Court may extend the term of supervised release if less than the maximum term was previously imposed. The maximum term of supervised release was previously imposed; therefore, the term cannot be extended.
Section 3583(e)(3), provides that the Court may revoke a term of supervised release and require the Defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post release supervision, if the Court finds by a preponderance of evidence that the defendant has violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be sentenced to a term beyond 5 years if the instant offense was a Class A felony, 3 years for a Class B felony, 2 years for a Class C or D felony, or 1 year for a Class E felony or a misdemeanor. Defendant was on supervision for a Class B felony. Therefore, he may not be required to serve more than three years' imprisonment upon revocation.
Pursuant to 18 U.S.C. § 3583(h) and § 7B1.3(g)(2), when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized, the Court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. The authorized statutory maximum term of supervised release is five years.
Section 7B1.1 provides for three grades of violations (A, B, and C). Subsection (b) states that where there is more than one violation, or the violation includes more than one offense, the grade of violation is determined by the violation having the most serious grade.
Section 7B1.1(a) notes that a Grade A violation constitutes conduct which is punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device; or any other offense punishable by a term of imprisonment exceeding twenty years. Grade B violations are conduct constituting any other offense punishable by a term of imprisonment exceeding one year. Grade C violations are conduct constituting an offense punishable by a term of imprisonment of one year or less; or a violation of any other condition of supervision.
Section 7B1.3(a)(1) states that upon a finding of a Grade A or B violation, the Court shall revoke supervision. Subsection (a)(2) provides that upon a finding of a Grade C violation, the court may revoke, extend, or modify the conditions of supervision. Defendant committed a Grade C violation. Therefore, the Court shall revoke supervision.
Section 7B1.3(c)(1) provides that where the minimum term of imprisonment determined under § 7B1.4 is at least one month, but not more than six months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5C1.1(e) for any portion of the minimum term. Should the Court find that Defendant has committed a Grade B or C violation, § 7B1.3(c)(2) states that where the minimum term of imprisonment determined under § 7B1.4 is more than six months but not more than ten months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in §5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment. Neither of these provisions apply to this matter.
Section 7B1.3(d) states that any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under § 7B1.4 (Term of Imprisonment), and any such unserved period of confinement or detention may be converted to an equivalent period of imprisonment. There is a three-month term outstanding at the Residential Re-entry Center.
Section 7B1.4(a) provides that the criminal history category is the category applicable at the time Defendant was originally sentenced. Defendant had a Criminal History Category of VI at the time of sentencing.
Should the Court revoke supervised release, the Revocation Table provided for in § 7B1.4(a) provides the applicable imprisonment range.
Defendant committed a Grade C violation and has a Criminal History Category of VI. Therefore, the applicable range of imprisonment for this violation is eight to fourteen months.
Section 7B1.5(b) provides that, upon revocation of supervised release, no credit shall be given toward any term of imprisonment ordered, for time previously served on post-release supervision.
Analysis and Recommendation
Defendant completed a lengthy prison sentence for armed robbery in 2022. Defendant participated in HOPE Court and is currently on a pause. He has struggled with substance abuse while on supervision. Last October, Defendant's situation deteriorated to the point that he was out of control and charged with multiple domestic violence charges over a one-week span. The earlier charges were dismissed, but the second set remains pending and was admitted to here as a violation.
These are Grade C violations, and the Guideline range is eight to fourteen months. He was held in state custody for nearly six months and was recently bailed on this violation charge to reside at a local sober residence and to resume treatment. If Defendant successfully participates in the sober residence program and treatment, my recommendation is time-served. If he is discharged from the sober residence and/or otherwise violates his supervised release conditions prior to final sentencing on these violations, I reserve the right to amend my sentencing recommendation as warranted by the facts.
Conclusion
After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), I recommend that Defendant be sentenced to time-served followed by thirty-six months of supervised release with the following special conditions:
1. Defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
2. Defendant shall participate in a program of substance abuse testing (up to seventy-two drug tests per year) as directed and approved by the Probation Office.
3. Defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
4. Defendant shall participate in a manualized behavioral program as directed by the Probation Office. Such program may include group sessions led by a counselor or participation in a program administered by the Probation Office. Defendant shall pay for the cost of treatment to the extent he is able as determined by the Probation Officer.
5. Defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the Probation Officer.
6. The Court makes a judicial recommendation that Defendant consider participation in the HOPE Court program.
Any objections to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen days of service of this Report and Recommendation. See Fed. R. Crim. P. 59(b); DRI LR Cr 57.2(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1stCir. 2008).