Opinion
CR 17-00059-WES
09-24-2024
UNITED STATES OF AMERICA v. TAQUALA WIGGINTON
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, United States Magistrate Judge
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) and 18 U.S.C. § 3401(i) for proposed findings of fact concerning whether Defendant is in violation of the terms of her supervised release and, if so, to recommend a disposition of this matter. In compliance with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1, a revocation hearing was held on June 24, 2024, at which time Defendant, through counsel and personally, admitted that she was in violation of her supervised release conditions. At the hearing, I ordered Defendant released pending my Report and Recommendation and final sentencing before District Judge William E. Smith.
On March 13, 2023, the Probation Office petitioned the Court for the issuance of an arrest warrant. On that date, the District Court reviewed the request and ordered the issuance of a warrant. Defendant appeared before the Court for a revocation hearing on June 24, 2024 at which time she admitted to the following charge:
Violation No. 1. Mandatory Condition: Defendant must not commit another federal, state, or local crime.
On January 30, 2023, Defendant committed the offense of Unauthorized Computer Access (Felony) and Obtaining Property by False Pretenses (Felony) as evidenced by her arrest on March 11, 2023,
for an outstanding warrant issued by the West Warwick Police Department.
As Defendant has admitted this charge, I find she is in violation of the terms and conditions of her supervised release.
Recommended Disposition
Section 3583(e)(2) provides that if the Court finds that Defendant violated a condition of supervised release, the Court may extend the term of supervised release if less than the maximum term was previously imposed. The maximum term of supervised release was previously imposed; therefore, the term cannot be extended.
Section 3583(e)(3), provides that the Court may revoke a term of supervised release and require the Defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post release supervision, if the Court finds by a preponderance of evidence that the defendant has violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be sentenced to a term beyond 5 years if the instant offense was a Class A felony, 3 years for a Class B felony, 2 years for a Class C or D felony, or 1 year for a Class E felony or a misdemeanor. Defendant was on supervision for a Class B felony. Therefore, she may not be required to serve more than three years' imprisonment upon revocation.
Pursuant to 18 U.S.C. § 3583(h) and § 7B1.3(g)(2), when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized, the Court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. The authorized statutory maximum term of supervised release is five years. The Court may impose the above-noted statutory maximum, minus the term of imprisonment that is to be imposed for this revocation.
Section 7B1.1 provides for three grades of violations (A, B, and C). Subsection (b) states that where there is more than one violation, or the violation includes more than one offense, the grade of violation is determined by the violation having the most serious grade.
Section 7B1.1(a) notes that a Grade A violation constitutes conduct which is punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device; or any other offense punishable by a term of imprisonment exceeding twenty years. Grade B violations are conduct constituting any other offense punishable by a term of imprisonment exceeding one year. Grade C violations are conduct constituting an offense punishable by a term of imprisonment of one year or less; or a violation of any other condition of supervision.
Section 7B1.3(a)(1) states that upon a finding of a Grade A or B violation, the Court shall revoke supervision. Subsection (a)(2) provides that upon a finding of a Grade C violation, the court may revoke, extend, or modify the conditions of supervision. Defendant committed a Grade B violation. Therefore, the Court shall revoke supervision.
Section 7B1.3(c)(1) provides that where the minimum term of imprisonment determined under § 7B1.4 is at least one month, but not more than six months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5C1.1(e) for any portion of the minimum term. Should the Court find that Defendant has committed a Grade B or C violation, § 7B1.3(c)(2) states that where the minimum term of imprisonment determined under § 7B1.4 is more than six months but not more than ten months, the minimum term may be satisfied by (A) a sentence of imprisonment; or (B) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in §5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment. Neither of these provisions apply to this matter.
Section 7B1.3(d) states that any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under § 7B1.4 (Term of Imprisonment), and any such unserved period of confinement or detention may be converted to an equivalent period of imprisonment. There is an outstanding restitution balance of $17,747.94.
Section 7B1.4(a) provides that the criminal history category is the category applicable at the time Defendant was originally sentenced. Defendant had a Criminal History Category of IV at the time of sentencing.
Should the Court revoke supervised release, the Revocation Table provided for in § 7B1.4(a) provides the applicable imprisonment range.
Defendant committed a Grade B violation and has a Criminal History Category of IV. Therefore, the applicable range of imprisonment for this violation is twelve to eighteen months.
Section 7B1.5(b) provides that, upon revocation of supervised release, no credit shall be given toward any term of imprisonment ordered, for time previously served on post-release supervision.
Analysis and Recommendation
Defendant initially came before this Court in 2015 at the age of eighteen (CR No. 15-00002-WES). Her initial periods on supervised release were rocky and marked by numerous violations and arrests. She is now twenty-eight years old, and she has matured and made significant positive progress in the past year.
Defendant has accepted responsibility and admitted to a Grade B violation related to an unsuccessful attempt to negotiate a stolen business check on January 30, 2023. Although a serious offense and consistent with some of Defendant's past criminal history, it reasonably appears to be somewhat of an aberration at the time, given her improved compliance. It also reasonably appears to the Court that Defendant's failed check fraud attempt came at a time of financial desperation, and it was a poor decision fostered by panic.
The parties have jointly proposed a time-served sentence followed by eighteen months of further supervised release. Since Defendant's supervision is currently due to expire in January 2025, this proposed sentence would sanction Defendant by extending her supervision for several additional months. On balance, I find this to be a reasonable disposition and adopt the parties' joint recommendation as mine. A jail sanction at this time would be counter-productive for this Defendant given her stable employment and housing, her recent history of strict compliance with supervision conditions, and the extenuating personal circumstances that led to the attempted check fraud in issue.
Conclusion
After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), I recommend that Defendant be sentenced to time-served followed by eighteen months of supervised release with the following special conditions:
1. Defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
2. Defendant shall participate in a program of substance abuse testing (up to seventy-two drug tests per year) as directed and approved by the Probation Office.
3. Defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
4. Defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the Probation Officer.
5. Defendant is to provide access to all financial information requested by the supervising Probation Officer including, but not limited to, copies of all federal and state income tax returns. All tax returns shall be filed in a timely manner.
Any objections to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen days of service of this Report and Recommendation. See Fed. R. Crim. P. 59(b); DRI LR Cr 57.2(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1stCir. 2008).