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United States v. Molina

United States District Court, S.D. Florida

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO SANTIAGO MOLINA, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSION TO ALL VIOLATIONS AS SET FORTH IN THE 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 January 26, 2018 with respect to the Petition for Warrant or Summons for Offender under Supervision (the "Petition"), and this Court having convened a hearing, recommends to the District Court as follows:

         1. Defendant appeared before this Court on January 26, 2018 for a final hearing on the Petition, which alleges the following violations of supervised release:

Violation Number 1

Violation of Mandatory Condition, by unlawfully possessiflg or using a controlled substance. On Decem ber 5, 2017, the defendant subm itted a urine specim en which tested positive for the presence of amphetamine in otlr local laboratory; and subsequently confirmed positive by Alere Incop orated.

Violation Number 2

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about December 26, 2017, in Martin County, Florida, the defendant committed the offense of Possession of a Firearm by a Convicted Felon, contrary to Florida Statute 79O.23(1)(a).

Violation Number 3

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about December 26, 2017, in Martin County, Florida, the defendant committed the offense of Possession of Ammunition by a Convicted Felon, contrary to Florida Statute 79O.23(1)(a).

Violation Number 4

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about December 26, 2017, in Martin County, Florida, the defendant committed the offense of Unlicensed Carrying of a Concealed Firearm, contrary to Florida Statute 790.01.

Violation Number 5

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about December 26, 2017, in Martin County, Florida, the defendant committed the offense of Possession of Cannabis Under 20 Grams, contrary to Florida Statute 893.13.

         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 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. The Government provided a factual basis for Defendant's admissions to Violation Numbers 1 though 5. Regarding Violation Number 1, the Government offered a drug test report from Alere Toxicology Services, Inc. indicating that the urine sample Defendant submitted on December 5, 2017 tested positive for amphetamines. The report was admitted without objection as Government's Exhibit 1. Regarding Violation Numbers 2 through 5, the Government proffered that on December 26, 2017 Officer C. Angervil of the Stuart Police Department responded to a hotel in Stuart, Florida where suspicious activity had been reported. Officer Angervil encountered Defendant and five other males in the parking lot, and subsequently conducted a pat down of Defendant. Officer Angervil found a concealed, loaded firearm on Defendant's waistband and a clear bag containing less than 20 grams of marijuana in Defendant's pocket. Defendant is not licensed to carry a concealed firearm, and is prohibited from possessing firearms or ammunition. 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.

         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 K. Michael Moore, the Chief 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 ...


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