Opinion
CR 15-117-01WES
05-22-2024
UNITED STATES OF AMERICA v. MICHAEL SABATINO
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, 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 Michael Sabatino is in violation of the terms of his supervised release and, if so, for recommended disposition. In compliance with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1, Defendant appeared initially on February 2, 2024, and was released on conditions. Based on the new violations in the Second Amended Petition, a second initial appearance was conducted on March 11, 2024, and Defendant was detained. At the final hearing on March 14, 2024, Defendant waived a revocation hearing and admitted Violation Nos. 1 and 3-6; Violation Nos. 2 and 7 were dismissed on the government's motion.
Based on Defendant's admissions and the following analysis, I recommend that the Court impose a sentence of eight months of incarceration, followed by a five-year term of supervised release. While on supervised release, I recommend that Defendant be required to comply with the following conditions:
The defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
The defendant shall participate in a program of substance abuse testing (up to 72 drug tests per year) as directed and approved by the Probation Office.
The defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
The defendant shall participate in a sex offender specific treatment program directed and approved by the probation officer.
The defendant shall participate in testing in the form of polygraphs, or any other methodology approved by the Court in order to measure compliance with the conditions of supervision or treatment. When submitting to a polygraph exam, you do not waive your Fifth Amendment rights, and your exercise of such rights will not give rise to a violation proceeding.
The defendant shall comply with all applicable federal and state laws regarding the registration of sex offenders in the state of residence, employment and school attendance, and shall provide verification of compliance with this requirement to the probation officer.
The defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of a violation of supervision, to conduct a search of the defendant's residence, automobile, workplace, computer, and other electronic communication or data storage devices or media.
The defendant must submit to unannounced examination of his computer or other electronic equipment by the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, which may include retrieval and copying of all data from the computer to ensure compliance with this condition. In addition, the defendant must consent to the removal of such equipment for the purpose of conducting a more thorough investigation and must allow, at the discretion of the probation officer, installation on the defendant's computer any hardware or software system to monitor his computer use.
The defendant shall notify the probation officer of all computers and other electronic communication or data storage devices or media owned or operated by the defendant at the commencement of supervision, and immediately report any additional software purchases, acquisitions, or use during the term of supervision.
The defendant shall have no contact with any child under the age of 18 without the presence of an adult who is aware of the defendant's criminal history and is approved, in advance, by the probation officer.
The defendant shall not loiter in areas where children congregate. These areas include, but are not limited to, schools, daycare centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events.
The defendant shall not be employed in any occupation, business, or profession or participate in any volunteer activity where there is access to children under the age of 18, unless authorized, in advance, by the probation officer.
The defendant shall live at a residence approved by the probation office, and not reside with anyone under the age of 18, unless approved, in advance, by the probation office.
The defendant shall have no contact, whether direct or indirect, with the victims of the present offense.
The defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the probation officer.
I. BACKGROUND
This violation proceeding began on January 18, 2024, when Probation filed a Petition charging Violation Nos. 1-3 listed below and requesting issuance of a summons. Before the date set for Defendant's appearance, he had more positive drug tests and left the District without permission, as alleged in Violation No. 4. The Amended Petition was filed on January 31, 2024. Defendant appeared and was released on February 2, 2024, with the additional bail conditions of standalone GPS and a no contact order with the alleged victim of Violation No. 2. Before Defendant appeared again, he had yet another positive drug test and had allegedly committed the conduct charged in Violation Nos. 5-7. On March 6, 2024, Probation filed the Second Amended Petition and the Court granted the Probation Office's request for a summons; the Second Amended Petition charges Defendant with the following violations:
Violation No. 1: The defendant must refrain from any unlawful use of a controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the Court.
Mr. Sabatino used marijuana, as evidenced by positive drug tests on December 16, 2023, January 4, 2024, January 18, 2024, and February 14, 2024.
Violation No. 2: The defendant shall not commit another federal, state, or local crime.
On January 14, 2024, as evidenced by a Providence Police Department Incident Report, Mr. Sabatino was arrested and charged with Domestic Violence - Simple Assault and/or Battery - Third Plus Offense (Count 1-Felony); Domestic Violence - Vandalism - Third Plus Offense (Count 2-Felony); Domestic Violence - Refusal Relinquish/Damage /Obstruct Telephone - First Offense (Count 3); Domestic Violence - Vandalism - First Offense (Count 4); and Resisting Legal or Legal Arrest (Count 5); Case no. 62/24-00488.
Violation No. 3: The defendant must allow the probation officer to visit him at any time at his home or elsewhere, and he must permit the probation officer to take any items prohibited by the conditions of his supervision that he or she observed in plain view.
On January 3, 2024, Mr. Sabatino failed to accommodate a home visit by departing his residence upon the arrival of probation officers and failing to return.
Violation No. 4: The defendant must not knowingly leave the federal judicial district where he is authorized to reside without first getting permission from the Court or the probation officer.
On January 19, 2024, Mr. Sabatino traveled to Boston, Massachusetts without authorization. On an unknown date between December 22, 2023, and January 29, 2024, Mr. Sabatino traveled to Ledyard, Connecticut without authorization.
Violation No. 5: The defendant must submit to unannounced examination of his computer or other electronic equipment by the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, which may include retrieval and copying of all data from the computer to ensure compliance with this condition. In addition, the defendant must consent to the removal of such equipment for the purpose of conducting a more thorough investigation and must allow, at the discretion of the probation officer, installation on the defendant's computer any hardware or software system to monitor his computer use.
On February 6, 2024, Mr. Sabatino was instructed to surrender his smartphone for a manual inspection. He surrendered the device only after a purposeful delay, during which he deleted data from his smartphone while in the presence of two U.S. Probation Officers.
Violation No. 6: The defendant shall notify the probation officer of all computers and other electronic communication or data storage devices or media owned or operated by the defendant at the commencement of
supervision, and immediately report any additional software purchases, acquisitions, or use during the term of his supervision.
Mr. Sabatino was in possession of two smartphones, which had not been reported to the Probation Department, as evidenced by two phones being seized from his vehicle on February 23, 2024.
Violation No. 7: The defendant shall avoid all contact, directly or indirectly, with any person who is or may be a victim or witness in the investigation or prosecution, including with the alleged victim.
Between February 7, 2024, and February 20, 2024, as evidenced by texts and call logs observed on a Schok Volt 55 smartphone, Mr. Sabatino was in direct contact with K.A., the alleged victim in case no. 62/24-00488.
On March 11, 2024, Defendant appeared initially on the new Violations and was detained. On March 14, 2024, Defendant waived his right to a revocation hearing and admitted Violation Nos. 1 and 3-6 in full. In reliance on these admissions, the government made an oral motion to dismiss Violations No. 2 and 7, which I granted. Based on his admissions, I found Defendant guilty of violating the terms and conditions of his supervised release.
II. APPLICABLE LAW
Title 18 U.S.C. § 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 five years if the instant offense was a Class A felony, three years for a Class B felony, two years for a Class C or D felony, or one year for a Class E felony or a misdemeanor. In this case, Defendant was on supervision for Class A felonies; therefore, he may not be required to serve more than five years imprisonment upon revocation.
Title 18 U.S.C. § 3583(e)(2) provides that if the Court finds that the 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. In this case, the maximum term of supervised release is life; therefore, the term can be extended.
Title 18 U.S.C. § 3583(h) and § 7B1.3(g)(2) of the United States Sentencing Guidelines (“USSG”) provide that 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. In this case, the authorized statutory maximum term of supervised release is life. The Court may impose the above-noted statutory maximum.
Section 7B1.1 of the USSG 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) of the USSG provides that a Grade A violation constitutes conduct that is punishable by a term of imprisonment exceeding one year, and 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) states that upon a finding of a Grade C violation, the Court may revoke, extend or modify the conditions of supervision. In this case, Defendant was originally charged with Grade B violations, but they became Grade C violations when the Court granted the government's motion to dismiss Violations No. 2 and 7. Therefore, the Court may revoke, extend or modify the conditions of supervision.
Should the Court find that the defendant has committed a Grade B or C violation, § 7B1.3(c)(1) states 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 the 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. The first provision applies to this matter.
Pursuant to § 7B1.3(d), 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. In this case, there are no unsatisfied conditions.
Section 7B1.4(a) of the USSG provides that the Criminal History Category is the category applicable at the time the defendant was originally sentenced. In this instance, Defendant had a Criminal History Category of III 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. In this case, Defendant committed Grade C violations and has a Criminal History Category of III. Therefore, the applicable range of imprisonment for this violation is five to eleven months.
Section 7B1.5(b) of the USSG 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.
III. ANALYSIS
On September 30, 2016, Defendant entered a plea of guilty to sex trafficking of a child. He was sentenced to an eighty-four-month term of imprisonment, followed by sixty months of supervised release. Supervised release commenced on March 17, 2022. The projected expiration date was March 16, 2027.
As the parties agreed during the hearing, Defendant's path through supervision so far has been “rocky.” Following a modification of conditions in July 2022, his first set of adjudicated violations is based on conduct that began in January 2023. In March 2023, Defendant was charged with violating supervised release based on drug trafficking, failure to attend required treatment and removal of his GPS bracelet after breaking his curfew. These violations were resolved with a sentence of time served (approximately seventy-one days), followed by a sixtymonth term of supervised release with the first five months to be spent at a residential reentry center (Houston House). ECF No. 176. Defendant did not comply with the latter condition. In September 2023, he absconded from Houston House; the Court addressed this conduct by modifying conditions to add two months on home detention with GPS monitoring.
The conduct underlying the Second Amended Petition began soon after, on December 16, 2023, when Defendant again tested positive for marijuana. The initial positive test, along with three additional positive tests (on January 4 and 18, 2024, and February 14, 2024), forms the basis for Violation No. 1. On January 3, 2024, Defendant intentionally avoided a home visit by leaving his residence upon arrival of probation officers (Violation No. 3). Between December 22, 2023, and January 29, 2024, Defendant traveled to Ledyard, Connecticut, to go to Foxwoods without permission from Probation. He also traveled to Boston, Massachusetts, to go to a Boston Celtics game without permission on January 19, 2024. This unauthorized travel is the basis for Violation No. 4. In mid-January 2024, Defendant was arrested for new state crimes, including misdemeanor and felony domestic violence charges after an argument with his girlfriend over Facebook posts that escalated into violence; these were the basis for now dismissed Violation No. 2. Defendant's deceptive and noncompliant behavior continued after he appeared initially in connection with the preceding Violations. Only four days later, on February 6, 2024, he was asked to surrender his smartphone for manual inspection and purposefully delayed and deleted data in front of two probation officers (Violation No. 5). On February 23, 2024, he was found to be in possession of two smartphones that he had not disclosed to Probation (Violation No. 6). Further, one of unauthorized smartphones had texts and call logs that revealed contact with K.A. between February 7, 2024, and February 20, 2024, in violation of the no contact orders imposed by this Court and the state court, as alleged in now dismissed Violation No. 7.
The state court issued a no contact order between Defendant and K.A., the alleged victim in the domestic violence case, which remains in full force and effect. The Court imposed its own no contact order as a bail condition at the February 2, 2024, initial appearance. After bail was revoked at the hearing on March 14, 2024, this Court continued the no contact order by issuing it orally, subject to further order of the Court. During the hearing, the parties agreed that whether the Court would continue this no contact order or reinstate it as a bail condition was dependent on whether the Court vacated detention and set bail conditions as Defendant had requested or whether Defendant would be detained through the imposition of the sentence. Because I have now determined that detention should continue and am recommending that a sentence of incarceration should be imposed, I have issued a text order that orders that, until the District Court imposes sentence, Defendant is banned from any contact - direct or indirect - with the individual who is the alleged victim of now-dismissed Violation No. 2.
The parties reached an agreement for a resolution of many of the matters in issue, which they presented to the Court on March 14, 2024. First, they agreed that the government would dismiss Violation Nos. 2 and 7 in reliance on Defendant's admissions to the other Violations in full. The parties further agreed that the dismissal of these Violations would convert those remaining into Grade C violations and that government could argue for a sentence that falls within the guidelines range for Grade C (between five and eleven months of incarceration) while Defendant could argue for a more lenient sentence. The parties also agreed to accept Probation's recommendation of a new sixty-month term of supervised release following any incarcerative (or alternative) sentence that the Court might impose.
In light of Defendant's admissions and mindful of this very troubling pattern of intentional noncompliance, the government requested that I recommend an incarcerative sentence of eight months, which is in the middle of the applicable guidelines range. Such a sentence is based on the need to keep the community safe and deter Defendant's dangerous conduct, as well as to sanction Defendant's serious and sustained breach of trust. Defendant urged the Court not to recommend incarceration, but instead to release him immediately on bail and home confinement or home detention, with this condition to continue as a sanction following the imposition of sentence for a period that is within the guidelines range. He argued that he needs mental health treatment, and that his “rocky” path on supervision with so many Violations in so short a period of time are evidence of that.
In further support of his argument for immediate release, Defendant presented three letters not previously seen by the government or Probation, which were collectively marked as Defendant's Exhibit A. The most significant of these is from an electrical services company -dated March 9, 2014, the letter reflects that Defendant has just been hired as an electrical apprentice for a new project to begin immediately requiring him to be released by March 18, 2024. Noting irregularities on the face of this letter, the government asked the Court for more time to respond; after discussing the issue, the parties agreed that an investigation of this opportunity would be performed after the March 14, 2024, hearing by the Probation officer, who would advise the Court on his findings without convening another hearing. Based on this investigation, Probation has advised me that he spoke directly to the writer of the letter and learned that this letter had been hastily written up by a family member pressured to do so by Defendant and that, upon further consideration, the offer has been rescinded. Based on Probation's report, I find that Exhibit A does not support immediate release but rather is consistent with Defendant's manipulative pattern of coming up with last minute “opportunities” to avoid the consequences of his conduct. Accordingly, I have not ordered immediate release and have not reinstated bail but have continued the previously entered order of detention pending the imposition of sentence as recommended below.
This family member said he would consider taking on Defendant upon release as a probationary general laborer.
On allocution, Defendant apologized to his grandmother who had been in the courtroom and the Court for his conduct. He stated that while he has struggled after his initial release from prison, he understood he had not been taking things seriously and that he had been working toward finding a job. He stated that he did not want to be in prison but wanted to work and be with his grandmother.
Based on the foregoing, I find that Defendant's breach of the Court's trust requires a serious consequence. In addition, I find that the Court should impose a sentence that is sufficient to address both the protection of the community from Defendant's criminal conduct, as well as to deter Defendant from continuing this conduct. Therefore, I recommend that the Court impose an incarcerative sentence of eight months, which is in the middle of the guidelines range.
Consistent with the parties' agreement and Probation's recommendation, I further recommend that the Court impose a five-year term of supervised release with the conditions proposed by Probation that are listed below.
IV. CONCLUSION
After considering the appropriate factors set forth in 18 U.S.C. § 3553(a) and for the reasons expressed above, I recommend that the Court impose a sentence of eight months of incarceration, followed by a sixty-month term of supervised release. While on supervised release, I recommend that Defendant be required to comply with the following conditions:
The defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
The defendant shall participate in a program of substance abuse testing (up to 72 drug tests per year) as directed and approved by the Probation Office.
The defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
The defendant shall participate in a sex offender specific treatment program directed and approved by the probation officer.
The defendant shall participate in testing in the form of polygraphs, or any other methodology approved by the Court in order to measure compliance with the conditions of supervision or treatment. When submitting to a polygraph exam,
you do not waive your Fifth Amendment rights, and your exercise of such rights will not give rise to a violation proceeding.
The defendant shall comply with all applicable federal and state laws regarding the registration of sex offenders in the state of residence, employment and school attendance, and shall provide verification of compliance with this requirement to the probation officer.
The defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of a violation of supervision, to conduct a search of the defendant's residence, automobile, workplace, computer, and other electronic communication or data storage devices or media.
The defendant must submit to unannounced examination of his computer or other electronic equipment by the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, which may include retrieval and copying of all data from the computer to ensure compliance with this condition. In addition, the defendant must consent to the removal of such equipment for the purpose of conducting a more thorough investigation and must allow, at the discretion of the probation officer, installation on the defendant's computer any hardware or software system to monitor his computer use.
The defendant shall notify the probation officer of all computers and other electronic communication or data storage devices or media owned or operated by the defendant at the commencement of supervision, and immediately report any additional software purchases, acquisitions, or use during the term of supervision.
The defendant shall have no contact with any child under the age of 18 without the presence of an adult who is aware of the defendant's criminal history and is approved, in advance, by the probation officer.
The defendant shall not loiter in areas where children congregate. These areas include, but are not limited to, schools, daycare centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events.
The defendant shall not be employed in any occupation, business, or profession or participate in any volunteer activity where there is access to children under the age of 18, unless authorized, in advance, by the probation officer.
The defendant shall live at a residence approved by the probation office, and not reside with anyone under the age of 18, unless approved, in advance, by the probation office.
The defendant shall have no contact, whether direct or indirect, with the victims of the present offense.
The defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the probation officer.
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.Civ.P. 72(b); DRI LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court's decision. See Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297 n.7 (1st Cir. 2017); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).