Opinion
08-cr-32-bbc-1
06-17-2015
UNITED STATES OF AMERICA, Plaintiff, v. JOHNATHON YOUNG, Defendant.
ORDER
A hearing on the probation office's petition for judicial review of Johnathon Young's supervised release was held on June 16, 2015, before U.S. District Judge Barbara B. Crabb. The government appeared by Assistant U.S. Attorney Rita Rumbelow. Defendant was present in person and by counsel Steven Zaleski. Also present was U.S. Probation Officer Nicholas A. Tuma.
From the record and the parties' stipulation, I make the following findings of fact.
FACTS
Defendant was sentenced in the Western District of Wisconsin on July 29, 2008, following his conviction for felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), a Class C felony. He was committed to the custody of the Bureau of Prisons to serve a 51-month term of imprisonment, with a three-year term of supervised release to follow.
Defendant began his term of supervised release on September 19, 2013. Since then, he has violated Standard Condition No. 2 of his conditions of supervised release, requiring him to report to his probation officer as directed, by failing to report daily when he was instructed to do so after a drug test tested positive for heroin, cocaine, and marijuana.
Defendant violated Standard Condition No. 6 of his conditions of supervised release, requiring him to notify his probation officer at least ten days prior to any change in residence, when he failed to make himself available for home and office visits and did not tell his supervising probation officer where he was.
Defendant violated Standard Condition No. 5 of his conditions of supervised release, requiring him to work regularly at a lawful occupation unless excused by his probation officer, as well as Standard Condition No. 6, requiring him notify his probation officer at least ten days prior to any change in employment, when he was fired from his job and failed to notify his probation officer. He has been unemployed ever since.
Defendant violated Special Condition No. 4 of his conditions of supervised release, requiring him to participate in substance abuse treatment, when he failed to report for random drug testing as directed by the probation office.
Defendant's conduct falls into the category of Grade C violations. Upon finding a Grade C violation, the court has authority under § 7B1.3(a)(2) of the advisory guidelines to revoke supervised release, extend the term of supervised release or modify the conditions of supervision.
CONCLUSIONS
Defendant's criminal history falls into category III. With Grade C violations, he has an advisory guideline range of imprisonment of 5 to 11 months. Under 18 U.S.C. § 3583, the statutory maximum to which he can be sentenced upon revocation is two years because his original conviction was for a Class C felony. 18 U.S.C. § 3583(h) authorizes another term of supervised release to follow imprisonment if the term of supervised release is revoked.
Although defendant's violations are serious, I am persuaded that placement in a residential reentry center will be sufficient to address defendant's recent non-compliance and relapse and satisfy the statutory purposes of sentencing set forth at 18 U.S.C. § 3553(a).
ORDER
IT IS ORDERED that the period of supervised release imposed on defendant Johnathon Young on September 19, 2013 is CONTINUED.
Defendant's conditions of supervised release shall be modified as follows to take into account his personal history, as well as the nature of his recent non-compliance, both of which demonstrate the need for corrective and rehabilitative programming.
Special Condition No. 5: Defendant is to spend 60 days in a residential reentry center, as approved by the supervising U.S. probation officer, with admission upon the first available vacancy. Defendant may be absent from the center for employment purposes, for mental health counseling and treatment and for passes consistent with program rules. Defendant is to pay his own medical expenses, if any, and is to pay 25% of his gross income toward the daily cost of residence. Defendant may be discharged early from the facility upon the approval of both the facility administrator and the supervising U.S. probation officer.
The standard and special conditions of supervised release that were imposed at the time of original sentencing on July 29, 2008, were reasonably related to the offense of conviction or to defendant's personal history and characteristics.
The standard conditions of supervision, as set forth in 18 U.S.C. §§ 3563(b) and 3583(d), have been established by policy of the Judicial Conference, as informed by U.S. Sentencing Commission policy statements in §§5B1.3 and 5D1.3. The Western District of Wisconsin has adopted some modifications as a result of resent Seventh Circuit cases. These standard conditions, adopted from 18 U.S.C. §§ 3563(b) and 3583(d) and numbered below, identify the basic requirements and expectations for defendants and address corresponding risk-related or recidivism-related factors. The standard conditions provide probation officers the means to monitor the conduct of defendants who are under court-ordered supervision by matching supervision and programming to factors correlated with risk.
| STANDARD CONDITIONS | JUSTIFICATION | |
| 1 | Defendant shall not leave thejudicial district without thepermission of the court or probationofficer. | To provide community protection,rehabilitation for defendant, and to enablethe supervising probation officer's statutoryduty to keep informed of defendant'slocation, conduct, condition, andcompliance. 18 U.S.C. § 3553(a)(1),(a) (2)(B) and (C); 18 U.S.C. §3563(b)(14); 18 U.S.C. § 3603(2) and (7);USSG §5B1.3(b)(1)(A), (C), (D) and(b) (2); USSG §5D1.3(b)(1)(A), (B), (C)and (b)(2). |
| 2 | Defendant is to report to theprobation office as directed by theCourt or probation officer and shallsubmit a complete written reportwithin the first five days of eachmonth, answer inquiries by theprobation officer and follow theofficer's instructions. The monthlyreport and the answer to theinquiries shall be truthful in allrespects unless a fully truthfulstatement would tend to incriminatedefendant, in violation of | To provide community protectionand rehabilitation for defendant, to ensureofficer and defendant safety, and to enablethe supervising probation officer's statutoryduty to keep informed of defendant'slocation, conduct, condition, andcompliance. 18 U.S.C. § 3553(a)(1),(a)(2)(B), (C) and (D); 18 U.S.C. §3563(b)(15)and (17); 18 U.S.C. § 3603(2),(3), (4) and (7); USSG §5B1.3(b)(1)(B),(C), (D), (E) and (b)(2); USSG§5D1.3(b)(1)(B), (C), (D) and (b)(2). |
| defendant's constitutional rights, inwhich case defendant has the rightto remain silent. | ||
| 3 | Defendant shall maintainlawful employment, seek lawfulemployment or enroll andparticipate in a course of study orvocational training that will equipdefendant for suitable employment,unless excused by the probationofficer or the court. | Evidence based practice researchindicates that lawful, stable employmentand education are pro-social activities thatreinforce the rehabilitation of defendant.Employment and education have beenidentified as risk factors for recidivism. 18U.S.C. § 3553(a)(2)(B), (C) and (D); 18U.S.C. § 3563(b)(4) and (5); 18 U.S.C. §3603(2), (3), (4) and (7); USSG§5B1.3(b)(1)(C), (D) and (E); USSG§5D1.3(b)(1)(B), (C) and (D). |
| 4 | Defendant shall notify theprobation officer within seventy-twohours of any change in residence,employer, or any change in jobclassification. | To provide community protection,rehabilitation for defendant, to ensureofficer and defendant safety, and to enablethe supervising probation officer's statutoryduty to keep informed of defendant'slocation, conduct, condition, andcompliance. 18 U.S.C. § 3553(a)(2)(C); 18U.S.C. § 3563(b)(13), (15), (16) and (19);18 U.S.C. § 3603(2), (3), (4) and (7);USSG §5B1.3(b)(1)(D) and (b)(2); USSG§5D1.3(b)(1)(C). |
| 5 | Defendant shall not purchase,possess, use, distribute or administerany narcotic or other controlledsubstance, or any paraphernaliarelated to such substances except asprescribed by a physician. | Evidence based practice researchindicates the use of illicit chemicals is a riskfactor for recidivism. This condition isrecommended to assist with defendant'srehabilitation, officer and defendant safety,and to protect the public. 18 U.S.C. §3553(a)(1), (a)(2)(A), (B) and (C); 18U.S.C. § 3563(b)(7); 18 U.S.C. § 3603(3);USSG §5B1.3(b)(1)(A), (B), (C) and (D);USSG §5D1.3(b)(1)(A), (B) and (C). |
| 6 | Defendant shall not visitplaces he knows or has reason tobelieve that controlled substancesare illegally sold, used, distributed oradministered. | Evidence based practice researchindicates that frequenting places whereillicit chemicals are sold, used, distributedor administered increases the risk thatdefendant will purchase, use or possessillicit chemicals. Individuals involved in thedistribution of illicit chemicals present arisk of peer association as identified in theresearch. This condition supportsrehabilitation of defendant and promotes |
| public safety. 18 U.S.C. § 3553(a)(1),(a)(2)(B) and (C); 18 U.S.C. § 3563(b)(6);18 U.S.C. § 3603(3); USSG§5B1.3(b)(1)(A), (B), (C), (D) and (b)(2);USSG §5D1.3(b)(1)(A), (B) and (C). | ||
| 7 | Defendant shall not meet,communicate or spend time withany persons he knows to be engagedin criminal activity or planning toengage in criminal activity. | Evidence based practice researchindicates that association with peersinvolved in criminal activity increases therisk of recidivism. This condition promotesand encourages pro-social relationships thatare conducive to a law-abiding lifestyle. 18U.S.C. § 3553(a)(1), (a)(2)(A), (B) and(C) ; 18 U.S.C. § 3563(b)(6); 18 U.S.C. §3603(3); USSG §5B1.3(b)(1)(B), (C) and(D) ; USSG §5D1.3(b)(1)(B) and (C). |
| 8 | Defendant shall permit aprobation officer to visit defendantat home, work or elsewhere at anyreasonable time and shall permitconfiscation of any contrabandobserved in plain view by theprobation officer. | Community contacts ensurecompliance with court-ordered conditionsand assist defendant in maintaining a law-abiding lifestyle. 18 U.S.C. § 3553(a)(1),(a) (2)(A), (B), and (C); 18 U.S.C. §3563(b)(13), (15), (16) and (17); 18U.S.C. § 3603(2), (3), (4) and (7); USSG§5B1.3(b)(1)(A), (B), (C), (D) and (b)(2);USSG §5D1.3(b)(1)(A), (B), (C) and(b) (2). |
| 9 | Defendant shall notify theprobation officer within seventy-twohours of being arrested orquestioned by a law enforcementofficer. | To provide for community safetyand rehabilitation of defendant. 18 U.S.C.§ 3553(a)(1), (a)(2)(A), (B) and (C); 18U.S.C. § 3563(b)(18); 18 U.S.C. §3603(2), (3), (4) and (7); USSG § 5B1.3(b)(1)(A), (B), (C) and (D); USSG § 5D1.3(b)(1)(A), (B) and (C). |
| 10 | Defendant shall not enterinto any agreement to act as aninformer or a special agent of a lawenforcement agency without theprior permission of the court. | Evidence based practice researchindicates contact with criminals andpotential involvement in facilitating othercrimes sanctioned by law enforcementofficers directly contradicts the condition ofno new offenses and criminal associations,which are risk factors for recidivism.Therefore, strict monitoring by theCourt/probation office is necessary for thesafety of the community, defendant, andthe supervising probation officer. 18U.S.C. § 3553(a)(1), (a)(2)(A), (B) and(C); 18 U.S.C. § 3563(b)(5), (6), (15), (17)and (18); 18 U.S.C. § 3603(2), (3), (4) and |
| (7); USSG §5B1.3(b)(1)(A), (B), (C) and(D); USSG §5D1.3(b)(1)(A), (B) and (C). | ||
| 11 | As directed by the probationofficer, defendant shall notify thirdparties of risks that may beoccasioned by defendant's criminalrecord, personal history orcharacteristics. The probationofficer may also take steps toconfirm defendant's compliancewith this notification requirement orprovide such notifications directly tothird parties. | To protect the public from furthercrimes perpetrated by defendant. 18U.S.C. § 3553(a)(1), (b)(2)(A), (B) and(C); 18 U.S.C. § 3563(b)(3), (4), (5), (6),(13) and (16); in a case of crimes againstproperty 18 U.S.C. § 3555; 18 U.S.C. §3603(2), (3), (4) and (7); USSG§5B1.3(b)(1)(A), (B), (C) and (D) and(b)(2); USSG §5D1.3(b)(1)(A), (B), (C)and (b)(2). |
The special conditions numbered below were imposed at the time of sentencing and are reimposed, in addition to special condition no. 5, related to defendant's stay at a residential re-entry center.
| SPECIAL CONDITION | JUSTIFICATION | |
| 1 | Register with local lawenforcement agencies and the stateattorney general, as directed by thesupervising U.S. probation officer. | Imposed based on the offense ofconviction and the need to monitordefendant's compliance with local, stateand federal laws. |
| 2 | Provide the supervising U.S.probation officer any and allrequested financial information,including copies of state and federaltax returns. | Imposed based on defendant'slimited employment history, and the needto monitor his ability to support himselfthrough legitimate means. |
| 3 | Submit his person, property,residence, office or vehicle to asearch conducted by a U.S.probation officer at a reasonabletime and in a reasonable mannerwhenever the probation officer hasreasonable suspicion of contrabandor the violation of a condition ofrelease; failure to submit to a searchmay be a ground for revocation;defendant shall warn any otherresidents that the premises he isoccupying may be subject tosearches pursuant to this condition. | Imposed based on the nature of theoffense of conviction, the need to protectthe public from further criminal activityperpetrated by the defendant as suggestedby his criminal history and the need toensure the safety of the supervising U.S.probation officer. |
| 4 | Abstain from the use of illegaldrugs and from association withdrug users and sellers and participatein substance abuse treatment.Defendant shall submit to drugtesting beginning within 15 days ofhis release and 60 drug testsannually thereafter. The probationoffice may utilize the AdministrativeOffice of the U.S. Courts' phasedcollection process. | Imposed based on the defendant'sself-reported use of marijuana, cocaine, andheroin. It is noted that he tested positivefor all three controlled substances whileunder supervision. |
Entered this 17th day of June 2015.
BY THE COURT:
/s/_________
Barbara B. Crabb
District Judge