Opinion
CR. No. 91-308-01 (TFH).
March 18, 2005
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge by the Honorable Thomas F. Hogan, Chief Judge, for a Hearing on Violation of Supervised Release and a Report and Recommendation.
Background
The Defendant was found guilty on February 15, 1994 on one count of Unlawful Distribution of Five Grams or More of Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii). Mr. Pujadas was sentenced to 72 months incarceration, to be followed by eight years supervised release. Special conditions of supervision included: 1) payment of a $50 special assessment; 2) Defendant was to seek and maintain employment; 3) participation in educational/vocational training; and 4) participation in urinalysis testing as directed. Supervised release began on May 23, 2003, and is scheduled to terminate on May 22, 2011.
On March 2, 2004, the Probation Office, by Memorandum, notified the trial court of Mr. Pujadas' non-compliance. At that time, Defendant admitted to using cocaine and opiates and agreed to a modification of the terms and conditions of his supervision to included participation in a substance abuse treatment program, which included inpatient treatment as directed by the Probation Officer. He voluntarily signed the Probation Form 49, waiving his right to a hearing, and the trial court approved this modification.
On September 21, 2004, the Defendant appeared before Magistrate Judge Robinson and admitted to drug usage and his need for treatment. His conditions of supervised release were modified to include 120 days at the U.S. Parole Commission Sanction Center.
Thereafter, the Probation Office filed a Form 12 Request for Course of Action alleging that: 1) Mr. Pujadas failed to complete his 120 days at the Sanctions Center as directed by the Court on September 21, 2004; 2) Mr. Pujadas did not report to the Probation Office for a scheduled appointment on January 18, 2005, and 3) Mr. Pujadas failed to submit monthly supervision reports for September, October, November, and December 2004, and January 2005, in a timely manner.
By Memorandum dated February 9, 2005, the Probation Office notified that the trial court that, on November 12, 2004, Mr. Pujadas self-surrendered to Hope Village Comprehensive Sanction Center to serve a 120 day sentence. On January 10, 2005, Defendant was unsatisfactorily discharged from Hope Village for failure to secure employment and several incident reports. These incident reports included unexcused absences and positive urinalysis tests, along with failure to secure employment. While a resident at Hope Village, according to the Probation Officer, he maintained a negative attitude with the staff and his peers and his prognosis for the future was described as poor. While at Hope Village, he submitted a total of six urine samples, all of which tested positive for morphine. Two of those tests resulted positive from prescription drugs but the other four resulted from illegal drug use.
The Probation Officer, in her Memorandum, also noted that the Defendant did not report to the Probation Office for a scheduled appointment on January 18, 2005. The request was made to Defendant's girlfriend, who stated that she would pass on the message of the appointment to the Defendant. On January 21, 2005, Mr. Pujadas called the Probation Officer and reported that he was in the La Casa Drug Treatment Center, which is the reason he failed to report on January 18, 2005. The Probation Officer also reported that Mr. Pujadas failed to submit timely monthly supervision reports for September, October, November, and December 2004, and January 2005.
Hearing on Violation of Supervised Release
A hearing on the alleged violations of the conditions of Mr. Pujadas' supervised release was held by the undersigned on March 18, 2005. At the hearing, Defendant was represented by counsel. The Probation Officer proffered to the Court the allegations set forth in the Form 12 Request for Course of Action and the Memorandum to the trial court dated February 9, 2005. The Probation Officer also noted that Mr. Pujadas had been through five drug treatment centers and that he still has a very serious drug addiction problem. It was the recommendation of the Probation Office that his supervised release be revoked and he be sentenced at the low end of the Sentencing Guideline Recommended Range, to be followed by a two year period of supervised release. The Defendant, through counsel, acknowledged the violations set forth in the Form 12 Request for Course of Action and advised the Court that an agreement had been reached by the Defendant, the Supervising Probation Officer, and the Government on their recommendation to the trial court.
Recommendation
Based upon the acknowledgment of the allegations made by the Probation Office that Mr. Pujadas, during the last twelve months, has tested positive for illegal drug use on numerous occasions and been terminated from the Hope Village Sanction Center program, the undersigned finds by a preponderance of the evidence that Mr. Pujadas is in violation of the terms and conditions of his supervised release. By agreement, the Defendant, the Probation Office, and the Government recommend to the trial court that Mr. Pujadas' supervised release be revoked, that he ben sentenced to a period of incarceration of seven months, which is within the Guideline range, and at the conclusion of such sentence, that Mr. Pujadas be re-sentenced to a period of two years supervised release. This recommendation will reduce the supervised release obligation imposed at the time of sentencing in February 1994. At the conclusion of the hearing, the Court permitted Mr. Pujadas to remain on supervised release for the express purpose of taking care of some family matters and directed that he then self surrender to the Probation Office on Monday, March 21, 2004, for the purpose of being without bond pending determination by the trial court.Options available to the Court
The 2004 edition of the U.S. Criminal Code and the 2003 edition of the Guidelines Manual were used to determine the sentencing options available to the trial court. The Probation Office notes that the violations acknowledged by Mr. Pujadas constitute a Grade C violation, and with a Criminal History category of V, the Guideline range of imprisonment is 7 to 13 months, pursuant to U.S.S.C. § 7B1.4(a). Upon a finding of a Grade C violation, the Court may (1) revoke supervised release or (2) extend the term of supervision and/or modify the conditions of supervision, pursuant to U.S.S.C. § 7B1.3(a)(2).
Should the trial court revoke Mr. Pujadas' term of supervised release, the trial court may require him to serve not more than five years incarceration, as Mr. Pujadas was originally convicted of a class A felony, pursuant to 18 U.S.C. § 3583(e)(3). Pursuant to 18 U.S.C. § 3583(g)(4), the trial court shall revoke the sentence of supervised release if the defendant tests positive for illegal controlled substances more than three times over the course of one year. According to the Probation Officer, Mr. Pujadas tested positive for illegal substances on at least four occasions within the previous twelve month period. However, pursuant to 18 U.S.C. § 3583(d), the trial court will consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs warrants an exception in accordance with the United States Sentencing Guidelines from 18 U.S.C. § 3565(g)(4), when considering any action against a defendant who failed a drug test.
Pursuant to 18 U.S.C. § 3583(h), the trial court has the authority to reimpose a term of supervised release if the sentence of imprisonment is less than authorized by 18 U.S.C. § 3583(e)(3). Thus the term of supervised releases is limited to the maximum term of supervised release originally authorized by statute (five years) less any prison sentence imposed upon revocation. The agreement as to the recommendation made by the Defendant, Probation Office and the Government falls within these options.