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United States v. Herrin

United States District Court, S.D. Florida

September 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILLIP MORRIS HERRIN, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSION TO VIOLATION NUMBERS 2, 4 AND 7 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 with respect to the Superseding Petition 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 September 11, 2019 for a final hearing on the Petition, which alleges the following violations of supervised release:

Violation Number 1

Violation of Standard Condition, by failing to report to the probation officer in a manner and frequency as directed by the court or probation officer. The defendant has failed to submit a written monthly report for the month of October, November, December 2018, January and February 2019.

Violation Number 2

Violation of Mandatory Condition, by unlawfully possessing or using a controlled substance. On February 24, 2019, the defendant submitted a urine specimen which tested positive for the presence of Amphetamines in our local laboratory; and subsequently was confirmed positive by Alere Toxicology Incorporated.

Violation Number 3

Violation of Standard Condition, by failing to follow the instructions of the probation officer. On or about March 6, 2019 and March 7, 2019, the defendant failed to report to the Ft. Pierce Probation office for a drug test as instructed by the probation officer.

Violation Number 4

Violation of Special Condition, by failing to participate in the Residential Re-Entry Center for a period of 180 days. On or about March 4, 2019, the defendant was unsuccessfully discharged from the Salvation Army RRC.

Violation Number 5

Violation of Standard Condition, by leaving the judicial district without first securing permission of the probation officer. On or about March 6, 2019, the defendant traveled to Kissimmee, Florida in Orange County without securing the permission of the probation officer or the court, as evidenced by the defendant admission to this officer via telephone on March 6, 2019.

Violation Number 6

Violation of Mandatory Condition, by refusing to submit to drug testing. On March 6, 2019 and March 7, 2019, the defendant was instructed to submit to drug testing and failed to do so.

Violation Number 7

Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about April 9, 2019, in Okeechobee County, Florida, the defendant did commit possession of methamphetamine, contrary to Florida State Statute 893.13(6)(A).

         2. After consultation with his attorney, Defendant announced to this Court that he wished to admit Violation Numbers 2, 4 and 7 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 proffer for Defendant's admissions and Defendant agreed that proffer was true and correct. According to the Government's proffer, on February 24, 2019, Defendant submitted a urine specimen that tested positive for amphetamine use. On March 4, 2019, the United States Probation Office was notified by Candace Fasano, Director of the Salvation Army Residential Reentry Center, that the Defendant had been unsuccessfully discharged for failing to return to the center after work on March 4, 2019. A warrant was obtained for Defendant's arrest. Defendant was arrested on April 9, 2019. He was searched and law enforcement found a small plastic bag containing methamphetamine in his sock. Defendant was charged with possession of methamphetamine in violation of FL ST § 893.13.

         5. The Government submitted three exhibits. Exhibit 1 is the Drug Test Report from Alere Toxicology Services confirming that Defendant tested positive for amphetamine use on February 24, 2019. Exhibit 2 is a Bureau of Prisons (BOP) Terminal Report confirming that Defendant did not successfully complete his Residential Reentry Center program. Exhibit 3 contains court records from the Nineteenth Judicial Circuit in and for Okeechobee County, Florida showing that Defendant pleaded guilty to possession of methamphetamine on August 26, 2019 and was sentenced to six months' imprisonment.

         6. The Court has considered the Government's proffer and finds that it sets forth a sufficient basis to support Defendant's admissions to Violation Numbers 2, 4 and 7.

         ACCORDINGLY, based upon Defendant's admission to Violation Numbers 2, 4 and 7 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 2, 4 and 7, 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 ...


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