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United States v. Agosto

United States District Court, S.D. Florida

November 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICKY AGOSTO, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSION TO ALL VIOLATIONS AS SET FORTH IN THE AMENDED PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE.

          SHANIEK M. MAYNARD UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE having come before the Court for a final hearing on November 16, 2017 with respect to the Amended Petition for Summons or Warrant for Offender under Supervision (the "Amended Petition")[1], and this Court having convened a hearing, recommends to the District Court as follows:

         1. Defendant appeared before this Court on November 16, 2017 for a final hearing with respect to the Petition, which alleges the following violations of supervised release:

Violation Number 1

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about August 11, 2016, in Brevard County, Florida, the defendant committed the offense of Conspiracy to Distribute Heroin and Cocaine, contrary to 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 846. On October 16, 2017 the defendant pled guilty (Docket No. 6:17-cr-12-Orl-37KRS, Middle District of Florida, Orlando Division) and was sentenced to 57 months custody of the Bureau of Prisons.

Violation Number 2

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about August 11, 2016, in Brevard County, Florida, the defendant committed the offense of Possession with Intent to Distribute and Distribution of Heroin, contrary to 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 2. On October 16, 2017 the defendant pled guilty (Docket No. 6:17-cr-12-Orl-37KRS, Middle District of Florida, Orlando Division) and was sentenced to 57 months custody of the Bureau of Prisons.

Violation Number 3

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about August 11, 2016, in Brevard County, Florida, the defendant committed the offense of Possession of Heroin, contrary to 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). On October 16, 2017 the defendant pled guilty (Docket No. 6:17-cr-12-Orl-37KRS, Middle District of Florida, Orlando Division) and was sentenced to 57 months custody of the Bureau of Prisons.

Violation Number 4

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about August 11, 2016, in Brevard County, Florida, the defendant committed the offense of Possession with Intent to Distribute Heroin and Cocaine, contrary to 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). On October 16, 2017 the defendant pled guilty (Docket No. 6:17-cr-12-Orl-37KRS, Middle District of Florida, Orlando Division) and was sentenced to 57 months custody of the Bureau of Prisons.

Violation Number 5

Violation of Standard Condition, by leaving the judicial district without first securing the permission of the probation officer. On or about August 11, 2016, the defendant traveled to Brevard County, Florida without securing the permission of the probation officer or the Court, as evidenced by his arrest by Brevard County Sheriffs Office on the same date.

         2. After consultation with his attorney, Defendant announced to this Court that he wished to admit Violation Numbers 1 through 5, as set forth in the Amended Petition. This Court questioned Defendant on the record and made certain that he understood his rights in regards to an evidentiary hearing with respect to the alleged violations. Defendant acknowledged that he understood his rights and further understands that if this Court accepts his admissions all that will remain will be for the District Court to conduct a sentencing hearing for final disposition in this matter.

         3. The possible maximum penalties faced by Defendant were read into the record by the Government, and Defendant stated that he understood those penalties.

         4. Counsel for the parties agreed that the Court could take judicial notice of the facts relating to Violation Numbers 1 through 5 as set forth in the Amended Petition and in the Memorandum from United States Probation to the District Court dated November 2, 2017 (the "Memorandum"). The Government also offered Government's Exhibit 1, which is a Judgment entered in the criminal case of United States of America v. Ricky Agosto, 17-CR-12-Orl-37KRS in the Middle District of Florida (the "MDFL Judgment"). Government's Exhibit 1 shows that on October 16, 2017 Defendant pleaded guilty to Conspiracy to Distribute Heroin and Cocaine (Count One), Possession with Intent to Distribute Heroin (Count Two), Distribution of Heroin (Count Three), and Possession with Intent to Distribute Heroin and Cocaine (Count Four), all culminating in his arrest in Brevard County, Florida on August 11, 2016. Id. The Government further proffered that Defendant did not have permission from his Probation Officer to travel to Brevard County on August 11, 2016, which Defendant obviously did as evidenced by his arrest in Brevard County on that date. Defendant agreed that the Government could prove these facts by a preponderance of the evidence if a hearing were held in this matter. This Court finds that Government's Exhibit 1 and the Government's proffer set forth a sufficient basis to support the Defendant's admissions to Violation Numbers 1 through 5.

         5. This Court points out one issue to the parties and the District Court. On October 31, 2017, Defendant appeared before this Court for an initial appearance on the Original Petition [D.E. 100]. At that time, the parties indicated that a request had been made to Probation to amend the Original Petition to reflect and parallel the specific charges Defendant had pleaded guilty to in the Middle District of Florida. As a result, an Amended Petition was filed on November 3, 2017 [D.E. 103] and Defendant admitted the violations alleged therein on November 16th before this Court [D.E. 106]. This Court observes, however, that the violations alleged in the Amended Petition differ slightly from the offenses listed in the MDFL Judgment in that the offense dates are different. The Amended Petition lists all violations as having occurred on August 11, 2016; the MDFL Judgment lists a different commission date for each offense, with only Court Four occurring on August 11, 2016. This Court presumes Probation intended to include the date of each offense as set forth in the MDFL Judgment and its failure to do so was a scrivener's error. This Court also presumes Defendant intended to admit the violations occurred on the dates set forth in the MDFL Judgment. If either presumption is inaccurate, the Parties shall indicate this by filing a written objection to this Report and Recommendation as set forth below.

         ACCORDINGLY, based upon Defendant's admission to Violation Numbers 1 through 5 of the Petition under oath, this Court recommends to the District Court that Defendant be found to have violated his supervised release with respect to Violation Numbers 1 through 5, and that a sentencing hearing be set at the earliest convenience of the District Court for final disposition of this matter.

         The parties shall have fourteen (14) days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable Donald L. Graham, the United States District Judge assigned to this case. Pursuant to Federal Rules of Criminal Procedure, Rule 59(b)(2), failure to file objections timely waives a party's right to review and bars the parties from attacking on appeal any legal rulings and factual findings contained herein.

         DONE AND SUBMITTED

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Notes:

[1] Since the submission of the original Petition for Summons or Warrant for Offender under Supervision (the "Original Petition"), which alleged violations of Florida law, the state case was transferred to federal authorities and Defendant pled guilty to related federal charges in the Middle District of Florida. Thus, the ...


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