United States District Court, N.D. Iowa, Western Division
REPORT AND RECOMMENDATION ON PETITION TO REVOKE SUPERVISED RELEASE
LEONARD T. STRAND, Magistrate Judge.
This case is before me on a petition to revoke defendant Jason Wayne Persons's supervised release. The petition (Doc. No. 103) was filed January 9, 2014. The Honorable Donald E. O'Brien referred this matter to me for the issuance of a report and recommended disposition (Doc. No. 106).
I held an evidentiary hearing on January 14, 2014. Plaintiff (the Government) was represented by Assistant United States Attorney Shawn Wehde. United States Probation Officer Crystal Hansen was also present. Persons appeared in person and with his attorney, Douglas Roehrich. The Government offered Government Exhibit 1 into evidence, which is a progress report from Jackson Recovery Center dated January 8, 2014. The defendant did not object and the exhibit was received into evidence under seal. Persons did not offer any evidence, but did exercise his right to make a statement to me.
On September 11, 2003, Persons was sentenced to 122 months imprisonment and an eight-year term of supervised
release (TSR) based on his plea of guilty to conspiracy to manufacture and distribute five grams or more of actual methamphetamine after a prior drug offense. See Doc. No. 61. Persons commenced his eight-year term of supervised release on March 28, 2011. On September 23, 2011, probation filed a request for modification of conditions with consent from Persons. Doc. No. 78. Persons had been arrested for driving while his license was suspended. He notified his probation officer, pled guilty to the offense and agreed to complete ten hours of community service for the TSR violation. On December 14, 2011, probation filed another request for modification of conditions with consent from Persons. Doc. No. 79. Persons had been involved in a traffic accident and was charged with driving without a license and a citation for failure to yield. He had also not completed the ten hours of community service. Persons agreed to three consecutive weekends in a designated facility for these violations. Probation filed a third request for modification of conditions with consent from Persons on March 27, 2012. Doc. No. 80. Persons had been seen in a bar by a police officer and a recent urinalysis had tested positive for methamphetamine. Persons admitted to being in the bar but not to drinking alcohol. He also admitted to using methamphetamine for about four months. The frequency of his urinalysis was increased and Persons was referred to Jackson Recovery Center for a substance abuse evaluation. Probation also recommended his TSR be modified to include five consecutive weekends in jail. These changes were accepted by the court. Another request to modify conditions was filed on May 14, 2012. Doc. No. 81. Persons had tested positive for methamphetamine again and admitted he had used on April 20, 2012. His TSR was modified to include inpatient treatment followed by placement in a residential reentry center (RRC) for up to 180 days.
Persons successfully completed inpatient drug treatment, stayed at Dismas Charities for 115 days and obtained employment. However, it was not long before Persons began violating the conditions of his TSR again. In October and November 2012, Persons failed to show for a random urinalysis, denied drug use on two occasions (later admitting that the denials were false), tampered with a sweat patch, was observed to be intoxicated at a bar and had a positive sweat patch result for methamphetamine. Doc. No. 82. The Government's petition to revoke supervision was granted and Persons was ordered to six months incarceration followed by four years of supervised release. Doc. No. 90.
On September 13, 2013, the Government filed another petition to revoke supervision. This petition alleged violations of association with a felon without permission, use of methamphetamine (on two occasions), failure to participate in substance abuse treatment, failure to submit to drug testing (on three occasions), failure to maintain employment and failure to comply with remote alcohol testing. Doc. No. 93. A supplemental petition was filed containing additional violations of use of a controlled substance and failure to participate in substance abuse treatment. Doc. No. 97. The court granted the petition and Persons was ordered to be incarcerated for three months followed by inpatient substance abuse treatment and the remainder of the original term of supervised release (through May 13, 2017). Doc. No. 100.
The current petition includes one violation of failure to participate in substance abuse treatment, a condition imposed as part of the previous revocation order. Doc. No. 103. Persons's supervised release commenced on December 20, 2013, and he began participating in inpatient substance abuse treatment at Synergy Center on December 23, 2013. On January 9, 2014, Hansen received a telephone call from staff at Synergy Center who told her Persons had walked away from the facility on the night of January 8, 2014. Persons had indicated to staff he did not feel like he needed to be there for treatment. During the hearing, he indicated he had also left treatment to spend time with his terminally ill father.
"A district court may revoke supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of supervised release.'" United States v. Holt, 664 F.3d 1147, 1149 (8th Cir. 2011) (quoting 18 U.S.C. § 3583(e)(3)). The court's finding that a defendant has violated the conditions of supervised release is reviewed for clear error, while an order of revocation based on such a finding is reviewed for abuse of discretion. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
I find by a preponderance of the evidence that Persons violated the terms and conditions of his supervised release based on his own admission. Having so found, 18 U.S.C. § 3583(e) requires that I consider certain specified factors set forth in 18 U.S.C. § 3553(a), in making a determination as to whether Persons's term of supervised release should be terminated, extended, modified, or revoked. Although I am not required to cite each relevant factor in § 3553(a), see United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005), those factors are set forth below for the convenience of the district court in reviewing this Report and Recommendation:
The court, in determining the particular sentence to be imposed, shall consider -
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed -
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just ...