Opinion
CRIMINAL ACTION NO. 4:19-CR-174
08-21-2019
UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA K. WASHBURN, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Now before the Court is the request for revocation of Defendant's supervised release. After the District Judge referred the matter to this Court for a report and recommendation, the Court conducted a hearing on August 7, 2019, to determine whether Defendant violated his supervised release. Defendant was represented by Brian O'Shea. The Government was represented by Christopher Eason.
Joshua Keith Washburn was sentenced on August 29, 2012, before The Honorable Brian C. Wimes of the Western District of Missouri, after pleading guilty to the offense of Felon in Possession of a Firearm, a Class C felony. This offense carried a statutory maximum imprisonment term of 10 years. The guideline imprisonment range, based on a total offense level of 21 and a criminal history category of V, was 70 to 87 months. Joshua K. Washburn was subsequently sentenced to 70 months imprisonment followed by a 3-year term of supervised release subject to the standard conditions of release, plus special conditions to include substance abuse counseling and testing; satisfy all warrants/pending charges within 90 days; submit to search; comply with offender employment guidelines; mental health treatment, and a $100 special assessment. On March 28, 2017, Joshua K. Washburn completed his period of imprisonment and began service of the supervision term in the Central District of California. On July 12, 2017, the defendant's supervision was transferred to the Eastern District of Texas. On July 15, 2019, jurisdiction of this case was transferred to the Eastern District of Texas and the case was assigned to U.S. District Judge Amos L. Mazzant, III.
On July 16, 2019, the U.S. Probation Officer executed a Petition for Warrant or Summons for Offender Under Supervision [Dkt. 2, Sealed]. The Petition asserted that Defendant violated twelve (12) conditions of supervision, as follows: (1), (3) The defendant shall not commit another federal, state, or local crime; (2), (6) The defendant shall not possess a firearm, destructive device, or any dangerous weapon; (4) The defendant shall not unlawfully possess a controlled substance; (5), (10) The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; (7) The defendant shall not leave the judicial district without the permission of the Court or probation officer; (8) The defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; (9) The defendant shall refrain from any unlawful use of a controlled substance; (11) The defendant shall notify the probation officer within seventy-two (72) hours of being arrested or questioned by a law enforcement officer; and (12) The defendant shall successfully participate in a substance abuse counseling program, which may include urinalysis, sweat patch, or Breathalyzer testing, as approved by the Probation Office, and pay any associated costs as directed the Probation Office.
The Petition alleges that Defendant committed the following acts: (1), (2) On June 27, 2019, the defendant was arrested by the Plano, TX, Police Department on a warrant from the Dallas County, Texas, Sheriff's Department for Aggravated Assault with a Deadly Weapon. According to the offense report, the defendant was involved an argument with another adult male on May 25, 2019, at a motel in Dallas, TX. At some point, the defendant reportedly pulled out a gun, and attempted to shoot the person with whom he was arguing, but, instead, shot an adult female in the abdomen area, who was present in the hotel room. The female victim was transported to a local hospital with internal injuries, the extent of which is unknown at this time. The defendant posted a $10,000 bond on this case and was released from custody on June 28, 2019; (3), (4), (5), (6) On June 29, 2019, the defendant was arrested by the Plano, TX, Police Department on felony charges of Unlawful Possession of a Firearm by a Convicted Felon, Possession of a Controlled Substance 4-200 grams, and Possession of a Controlled Substance, over 400 grams. Additionally, he was charged with misdemeanor Tampering with a Government Record for being in possession of a false identification. The arrest report reveals the defendant was sitting in the passenger seat of a vehicle that was being driven by his girlfriend, and the officers had received a complaint of a male and female arguing and fighting in a moving vehicle that was being operated in a reckless manner. Upon searching the vehicle, officers reportedly discovered three (3) firearms near the passenger seat area of the vehicle which offender occupied, and quantities of crystal methamphetamine, liquid methamphetamine, and heroin. The substances were field tested and yielded positive results for methamphetamine and heroin. Additionally, the officers discovered numerous needles, alcohol wipes, drug paraphernalia (glass pipe), and several vials of a liquid believed to be steroids. On July 3, 2019, the defendant posted bonds totaling $13,500, and was released from the custody of the Collin County, Texas, Sheriff's Office; (7), (8) On April 27, 2018, the defendant was discovered in Independence, MO , and was in the company of Kerri Seaboldt, who is a convicted felon, and is being supervised by the U.S. Probation Office in the Western District of Missouri. Officers of the Independence, MO, Police Department made contact with the defendant and Ms. Seaboldt, as it was believed Ms. Seaboldt had overdosed, and offender was reportedly displaying signs of intoxication as he was continuing to "pass out" as the officers were attempting to speak with him. The defendant was eventually released to his mother's care and no criminal charges were pursued. The defendant did not have permission to leave the Eastern District of Texas, and he had been specifically advised on prior occasions that he was not to associate with Ms. Seaboldt; (9), (10) During an office visit at the U.S. Probation Office on July 11, 2019, the defendant admitted verbally and in writing he has been using methamphetamine regularly since approximately the end of March 2019; (11) The defendant failed to notify the U.S. Probation Officer of his arrest by the Plano, TX, Police Department on June 29, 2019, within 72 hours. The defendant was released from custody on July 3, 2019; however, he did not notify the probation officer of this arrest until July 10, 2019; and (12) The defendant failed to report for drug testing as directed at Addiction Treatment Resources, in McKinney, TX, on June 4 and June 18, 2019.
Prior to the Government putting on its case, Defendant entered a plea of true to allegations 9 and 10 of the Petition; in connection with such allegations, Defendant admitted to both possession and use of methamphetamine. The Government dismissed the remaining allegations. Having considered the Petition and the plea of true to allegations 9 and 10, the Court finds that Defendant did violate his conditions of supervised release.
Defendant waived his right to allocute before the District Judge and his right to object to the report and recommendation of this Court.
RECOMMENDATION
Pursuant to the Sentencing Reform Act of 1984, the Court recommends that Defendant's supervised release be revoked and that he be committed to the custody of the Bureau of Prisons to be imprisoned for a term of twenty-one months, with no term of supervised release to follow.
The Court also recommends that Defendant be housed in the Bureau of Prisons facility in the North Texas area, if appropriate.
SIGNED this 21st day of August, 2019.
/s/_________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE