Opinion
CR 17-85-GF-BMM-JTJ
07-16-2020
UNITED STATES OF AMERICA, Plaintiff, v. CALVIN RED THUNDER, JR., Defendant.
FINDINGS AND RECOMMENDATIONS
I. Synopsis
Defendant Calvin Red Thunder, Jr. (Red Thunder) has been accused of violating the conditions of his supervised release. Red Thunder admitted all of the alleged violations. Red Thunder's supervised release should be revoked. Red Thunder should be placed in custody for 24 months, with no of supervised release to follow.
II. Status
Red Thunder pleaded guilty to Abusive Sexual Contact on March 22, 2018. (Doc. 28). The Court sentenced Red Thunder to 33 months of custody, followed by 3 years of supervised release. (Doc. 41.) Red Thunder's current term of supervised release began on May 8, 2020. (Doc. 44 at 1).
Petition
The United States Probation Office filed a Petition on July 2, 2020, requesting that the Court revoke Red Thunder's supervised release. (Doc. 44). The Petition alleged that Red Thunder had violated the conditions of his supervised release: 1) by failure to report to the probation office within 72 hours of release from imprisonment; 2) by consuming alcohol; 3) failing to participate in substance abuse testing; 4) by failing to complete substance abuse treatment; 5) by using a controlled substance; 6) by failing to participate in sex offender treatment.
Initial appearance
Red Thunder appeared before the undersigned for his initial appearance on July 16, 2020. Red Thunder was represented by counsel. Red Thunder stated that he had read the petition and that he understood the allegations. Red Thunder waived his right to a preliminary hearing. The parties consented to proceed with the revocation hearing before the undersigned.
Revocation hearing
The Court conducted a revocation hearing on July 16, 2020. Red Thunder admitted that he had violated the conditions of his supervised release: 1) by failure to report to the probation office within 72 hours of release from imprisonment; 2) by consuming alcohol; 3) by failure to participate in substance abuse testing; 4) by failure to complete substance abuse treatment; 5) by using a controlled substance; 6) by failure to participate in sex offender treatment. The violations that Red Thunder admitted are serious and warrant revocation of Red Thunder's supervised release.
Red Thunder's violations are Grade C violations. Red Thunder's criminal history category is II. Red Thunder's underlying offense is a Class C felony. Red Thunder could be incarcerated for up to 24 months. Red Thunder could be ordered to remain on supervised release for up to 36 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 4 to 10 months.
III. Analysis
Red Thunder's supervised release should be revoked. Red Thunder should be incarcerated for 24 months, with no supervised release to follow. This sentence is sufficient but not greater than necessary. The Court recommends a placement at FCI Butner, North Carolina.
IV. Conclusion
The Court informed Red Thunder that the above sentence would be recommended to United States District Judge Brian Morris. The Court also informed Red Thunder of his right to object to these Findings and Recommendations within 14 days of their issuance. The Court explained to Red Thunder that Judge Morris would consider a timely objection before making a final determination on whether to revoke his supervised release and what, if any, sanction to impose. Red Thunder stated that he wished to waive his right to object to these Findings and Recommendations, and that he wished to waive his right to allocute before Judge Morris. The Court FINDS:
That Calvin Red Thunder, Jr. violated the conditions of his supervised release:1) by failure to report to the probation office within 72 hours of release from imprisonment; 2) by consuming alcohol; 3) failing to participate in substance abuse testing; 4) by failing to complete substance abuse treatment; 5) by using a controlled substance; 6) by failing to participate in sex offender treatment.The Court RECOMMENDS:
That the District Court revoke Red Thunder's supervised release and commit Red Thunder to the custody of the United States Bureau of Prisons for 24 months, with no supervised release to follow. The Court recommends placement at FCI Butner, North Carolina.
NOTICE OF RIGHT TO OBJECT TO FINDINGS AND
RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO
OBJECT
The parties may serve and file written objections to the Findings and Recommendations within 14 days of their entry, as indicated on the Notice of Electronic Filing. 28 U.S.C. § 636(b)(1). A United States district court judge will make a de novo determination regarding any portion of the Findings and Recommendations to which objection is made. The district court judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district court judge, and may waive the right to appear and allocute before a district court judge.
DATED this 16th day of July, 2020.
/s/_________
John Johnston
United States Magistrate Judge