Opinion
Case No. 4:16-cr-00021-BLW-1
08-24-2016
REPORT AND RECOMMENDATION
On August 24, 2016, Defendant ALYSSA TIMBANA appeared before the undersigned United States Magistrate Judge to enter a change of plea pursuant to a written plea agreement (Dkt. 27). The Defendant executed a waiver of the right to have the presiding United States District Judge take her change of plea. Thereafter, the Court explained to the Defendant the nature of the charges contained in the applicable Indictment (Dkt. 1), the maximum penalties applicable, her Constitutional rights, the impact that the Sentencing Guidelines will have, and that the District Judge will not be bound by the agreement of the parties as to the penalty to be imposed.
The Court, having conducted the change of plea hearing and having inquired of the Defendant, counsel, and the government, finds that there is a factual basis for the Defendant's guilty plea, that she entered it voluntarily and with full knowledge of the consequences, and that the plea should be accepted. The undersigned also ordered a pre-sentence investigation to be conducted and a report prepared by the United States Probation Office.
Because the offense to which Defendant entered her guilty plea is an offense in a case described in subparagraph (A) of subsection (f)(1) of Section 3142 in Title 18 of the United States Code, subjecting Defendant to detention upon a finding of guilt under Section 3143(a)(2), the undersigned considered whether, under Section 3145(c), exceptional reasons were clearly shown as to why Defendant's detention pending imposition of sentencing would not be appropriate. The Government did not object to continued release, but deferred to the Court's determination as to whether exceptional reasons were shown in this case. The Court notes that Defendant violated conditions ordered for pretrial supervision during the pendency of this matter, and was subject to a period of temporary detention before an Amended Order setting conditions of release was entered by Judge Bush on July 21, 2016. (Dkt. 23, 25, 26.) The Government confirmed that Defendant has been compliant with conditions since release on July 21, 2016.
This case is unique with respect to the crime charged. As explained in the plea agreement, Defendant injured herself and her baby by lacerating her own neck and the baby's neck with a knife. The infant required surgery to repair the wounds. Defendant is scheduled for a follow up comprehensive psychiatric evaluation the second week in September of 2016. Further, she is regularly receiving outpatient counseling and treatment, including anger management, utilizing the services of Tribal Social Services located in Fort Hall. Defendant also is completing final course studies to obtain her GED. She currently resides with a third party custodian, her aunt, and has been compliant with the conditions of the Amended Order setting conditions of release. She does not have unsupervised contact with her child.
Upon consideration of the showing above, the undersigned finds the collective circumstances constitute exceptional reasons why detention pending imposition of sentencing would not be appropriate. Further, the undersigned finds Defendant is unlikely to flee or cause a danger to the community if release is continued and Defendant complies with the release conditions previously ordered. Accordingly, the undersigned will recommend release be continued.
RECOMMENDATION
NOW THEREFORE IT IS HEREBY RECOMMENDED:
1) The District Court accept Defendant ALYSSA TIMBANA's plea of guilty to Count 2 of the Indictment (Dkt. 1),
2) The District Court GRANT, at the appropriate time, the United States' motion to dismiss Count 1 of the Indictment (Dkt. 1) as to Defendant.
3) The District Court continue Defendant's release subject to the Amended Order setting conditions of release (Dkt. 26).
Written objections to this Report and Recommendation must be filed within fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(b), or as a result of failing to do so, that party may waive the right to raise factual and/or legal objections to the United States Court of Appeals for the Ninth Circuit. DATED: August 24, 2016
/s/_________
CANDY WAGAHOFF DALE
U.S. MAGISTRATE JUDGE