Opinion
CRIMINAL 4:15-CR-108-SDJ-KPJ
07-03-2024
UNITED STATES OF AMERICA v. KELBE C. SMITHERMAN
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KIMBERLY C. PRIESJ JOHNSON, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the Government's request for revocation of Defendant's supervised release. After the District Court referred the matter to the Court for a report and recommendation, it conducted a hearing on July 3, 2024, to determine whether Defendant violated the terms of his supervised release. Defendant was represented by Assistant Public Defender Sarah Jacobs. The Government was represented by Assistant United States Attorney Marisa Miller.
On March 14, 2016, United States District Judge Marcia A. Crone sentenced Defendant to ninety-seven (97) months imprisonment followed by five (5) years of supervised release. See Dkts. 32 at 1-3; 47 at 1. On August 31, 2021, Defendant began serving his term of supervised release. See Dkt. 47 at 1.
On May 13, 2024, the Probation Officer filed the Petition for Warrant or Summons for Offender Under Supervision (the “Petition”) (Dkt. 47), alleging Defendant violated three conditions of his supervised release. Id. at 1-2. The Petition asserts Defendant violated the following conditions of supervision: (1) Defendant shall not possess or view any images in any form of media or in any live venue that depicts sexually explicit conduct; (2) Defendant shall not use or own any devise that can be connected to the internet or used to store digital materials other than that authorized by the Probation Officer; and (3) Defendant shall answer truthfully all inquiries by the Probation Officer and follow the instructions of the Probation Officer. Id.
The Petition asserts Defendant violated the foregoing conditions as follows:
(1) On September 5, 2023, Defendant visited the website thumbnails.porncore.net, which contained sexually explicit images that included full frontal nudity and bondage.
On April 9, 2024, Defendant verbally admitted to viewing sexually explicit material on an unauthorized and unmonitored cell phone for the last four to five months.
On April 9, 2024, an unauthorized Samsung cell phone, belonging to Defendant, was found and confiscated during an approved search of his home. A forensics examination of the phone was subsequently conducted, and it was discovered that he had possessed and viewed numerous videos and/or images of individuals engaging in sexual intercourse; individuals masturbating; individuals engaging in oral and anal sex; and individuals engaging in other sexually explicit conduct.
(2) On April 9, 2024, during an approved search of his home, Defendant verbally admitted to having an unauthorized and unmonitored cell phone. The cell phone was stored behind his couch. When the Probation Officer discovered the phone, it was on airplane mode.
(3) On January 6, 2024, during a routine home visit, Defendant denied viewing sexually explicit material. However, on April 9, 2024, during a search of his home, Defendant verbally admitted to the Probation Officer that, for the last four to five months, he had an unauthorized and unmonitored cell phone located behind his couch, which he used to watch pornography.
On July 3, 2024, the Court conducted a final revocation hearing on the Petition. See Minute Entry for July 3, 2024. Defendant entered a plea of true to allegations one through three, consented to revocation of his supervised release, and waived his right to object to the proposed findings and recommendations of the undersigned. See id.; Dkt. 58. The Court finds that Defendant violated the terms of his supervised release, and thus, his supervised release should be revoked.
RECOMMENDATION
Pursuant to the Sentencing Reform Act of 1984, and having considered the arguments presented at the July 3, 2024 hearing, the Court recommends that Defendant be committed to the custody of the Bureau of Prisons to be imprisoned for eighteen (18) months with five (5) years of supervised release to follow under the same conditions as those under which he was originally released. The Court further recommends Defendant be placed at FMC Fort Worth in Fort Worth, Texas, if appropriate.
So ORDERED.