Opinion
1:14-cr-00242-TWP-TAB-2
02-24-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH A. WAYT, Defendant.
REPORT AND RECOMMENDATION
MARK J. DINSMORE UNITED STATE MAGISTRATE JUDGE
On February 23, 2023, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on February 15, 2023. [Dkt. 196.] Defendant appeared in person and by FCD counsel William Dazey . Government represented by AUSA Brad Blackington. USPO represented by Megan Durbin.
The Court conducted the following procedures in accordance with Fed. R. Crim. P. 32.1(a)(1) and 18 U.S.C. § 3583:
1. The Court advised Defendant Wayt of his rights and ensured he had a copy of the Petition. Defendant orally waived his right to a preliminary hearing.
2. After being placed under oath, Defendant Wayt admitted violation no. 1 as set forth in the Petition
3. The allegations to which Defendant admitted, as fully set forth in the Petition, are:
Violation No. Nature of Noncompliance
1 "The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance."
On December 30, 2019; August 15, September 27, and November 14, 2022; and January 25, January 28, February 6, and February 7, 2023, Mr. Wayt submitted urine samples that tested positive for methamphetamine.
4. The Court finds that:
(a) The highest grade of violation is a Grade B violation.
(b) Defendant's criminal history category is II.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 6 to 12 months' imprisonment.
5. The parties jointly recommended a sentence of ten (10) months' incarceration with a period of supervised release to follow to be determined by the Court, in exchange for the government dismissing violation nos. 2-4 as alleged in the Petition. Defendant requested placement at the lowest appropriate security level prison facility as near as possible to Evansville, Indiana.
The Magistrate Judge, having considered the factors set forth in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions set forth in in violation no. 1 of the Petition, and recommends that Defendant be sentenced to the custody of the Attorney General or his designee for a period of ten (10) months, with five (5) years supervised release to follow. The Magistrate Judge further recommends Defendant's placement at the lowest appropriate security level prison facility as near as possible to Evansville, Indiana.
In addition to the mandatory conditions of supervision, the following conditions of supervised release will be imposed:
1. You shall report to the probation office in the judicial district to which you are released within 72 hours of release from the custody of the Bureau of Prisons. Justification: This condition is an administrative requirement of supervision.
2. You shall report to the probation officer in a manner and frequency directed by the court or probation officer. Justification: This condition is an administrative requirement of supervision.
3. You shall permit a probation officer to visit you at a reasonable time at home, or another place where the officer may legitimately enter by right or consent, and shall permit confiscation of any contraband observed in plain view of the probation officer.
Justification: This condition will assist the probation officer in monitoring the offender for protection of the community.
4. You shall not knowingly leave the judicial district without the permission of the court or probation officer. Justification: This condition is an administrative requirement of supervision.
5. You shall answer truthfully the inquiries by the probation officer, subject to your 5th Amendment privilege. Justification: This condition is an administrative requirement of supervision.
6. You shall not meet, communicate, or otherwise interact with a person you know to be engaged, or planning to be engaged, in criminal activity. You shall report any contact with persons you know to be convicted felons to your probation officer within 72 hours of the contact. Justification: This condition is aimed at reducing the risk of recidivism and for protection of the community.
7. You shall reside at a location approved by the probation officer and shall notify the probation officer at least 72 hours prior to any planned change in place or circumstances of residence or employment (including, but not limited to, changes in who lives there, job positions, job responsibilities). When prior notification is not possible, you shall notify the probation officer within 72 hours of the change. Justification: This condition will assist the probation officer in monitoring the offender for protection of the community.
8. You shall not own, possess, or have access to a firearm, ammunition, destructive device or dangerous weapon. Justification: This condition will assist the probation officer in monitoring the offender for protection of the community and is a requirement pursuant to federal law.
9. You shall notify the probation officer within 72 hours of being arrested, charged, or questioned by a law enforcement officer. Justification: This condition is an administrative requirement of supervision.
10. You shall maintain lawful full-time employment, unless excused by the probation officer for schooling, vocational training, or other reasons that prevent lawful employment. Justification: This condition will ensure the offender maintains gainful employment and aid in reducing recidivism.
11. You shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court. Justification: This condition is aimed at reducing recidivism and to monitor the offender for protection of the community.
12. As directed by the probation officer, you shall notify third parties who may be impacted by the nature of the conduct underlying your current or prior offense(s) of conviction and/or shall permit the probation officer to make such notifications and/or confirm your compliance with this requirement. Justification: This condition is aimed at reducing recidivism and for protection of the community.
13. You shall make a good faith effort to follow instructions of the probation officer necessary to ensure compliance with the conditions of supervision. Justification: This condition is aimed at reducing the risk of recidivism and for protection of the community.
14. You shall not incur new credit charges, or open additional lines of credit without approval of the probation officer. Justification: This condition will aid in addressing the offender's history of instability on supervision, as he admitted to using the maximum amount of credit available to survive while still finding money to support his methamphetamine addiction.
15. You shall pay the costs associated with the following imposed conditions of supervised release, to the extent you are financially able to pay. The probation officer shall determine your ability to pay and any schedule of payment: mental health treatment, substance abuse testing and/or treatment. Justification: This condition will help the offender invest in his sobriety and rehabilitation.
16. You shall participate in a substance abuse or alcohol treatment program approved by the probation officer and abide by the rules and regulations of that program. The probation officer shall supervise your participation in the program (provider, location, modality, duration, intensity, etc.). The court authorizes the release of the presentence report and available evaluations to the treatment provider, as approved by the probation officer. Justification: This condition will aid in addressing the offender's history of substance abuse.
17. You shall not use or possess any controlled substances prohibited by applicable state or federal law, unless authorized to do so by a valid prescription from a licensed medical practitioner. You shall follow the prescription instructions regarding frequency and dosage. Justification: This condition will aid in addressing the offender's history of substance abuse.
18. You shall submit to substance abuse testing to determine if you have used a prohibited substance or to determine compliance with substance abuse treatment. Testing may include no more than 8 drug tests per month. You shall not attempt to obstruct or tamper with the testing methods. Justification: This condition will aid in ensuring compliance with a drug-free lifestyle.
19. You shall not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive substances (e.g., synthetic marijuana, bath salts, Spice, glue, etc.) that impair a person's physical or mental functioning, whether or not intended for human consumption. Justification: This condition will aid in ensuring compliance with a drug-free lifestyle.
20. You shall submit to the search by the probation officer of your person, vehicle, office/business, residence, and property, including any computer systems and hardware or software systems, electronic devices, telephones, and Internet-enabled devices, including the data contained in any such items, whenever the probation officer has a reasonable suspicion that a violation of a condition of supervision or other unlawful conduct may have occurred or be underway involving you and that the area(s) to be searched may contain evidence of such violation or conduct. Other law enforcement may assist as necessary. You shall submit to the seizure of contraband found by the probation officer. You shall warn other occupants these locations may be subject to searches. Justification: This condition will assist the probation in monitoring the offender for protection of the community.
21. You shall participate in a mental health treatment program, as approved by the probation officer, and abide by the rules and regulations of that program. The probation officer, in consultation with the treatment provider, shall supervise participation in the program (provider, location, modality, duration, intensity, etc.). You shall take all mental health medications that are prescribed by your treating physician. The court authorizes the release of the presentence report and available evaluations to the treatment provider, as approved by the probation officer. Justification: This condition will aid in addressing the offender's mental health as he is uncertain if he has unresolved mental health issues or if his mental health symptoms are a direct result of his extended substance use.
Defendant waived reading on the above conditions on the record.
The Defendant is to remain in custody pending the District Judge's action on this Report and Recommendation.
The parties are hereby notified that the District Judge may reconsider any matter assigned to a Magistrate Judge.
The parties waived the fourteen-day period to object to this Report and Recommendation.