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United States v. Powers

United States District Court, E.D. Kentucky, Northern Division, Covington

June 26, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
ROBERT POWERS DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         On June 21, 2017, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Violation Report and Addendum that Defendant Robert Powers had violated conditions of his supervised release. Defendant was present in Court and represented by F. Dennis Alerding, and the Government was represented by Assistant United States Attorney Anthony Bracke. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV2-10-cr-6-DLB-CJS20170622135501; the official record of this proceeding was certified by Kati Bramble, Deputy Clerk.

         Upon call of this matter at the Final Revocation Hearing, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to plead guilty to the violations as set forth in the June 7, 2017, Violation Report and June 20, 2017, Addendum and, in exchange, the Government agreed to a recommended sentence of 6 months of imprisonment with a 15-year term of supervised release to follow. For the reasons that follow, the parties' agreement is an appropriate disposition of this matter, and therefore it will be recommended that Defendant's supervised release be revoked and that he be sentenced to a 6-month term of imprisonment, with a 15-year term of supervised release to follow.

         I. Procedural Background

         On April 16, 2010, Defendant Robert Powers pleaded guilty to Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2). (See R. 23). On August 19, 2010, the presiding District Judge sentenced Defendant to a 96-month term of imprisonment with 15 years of supervised release to follow. (See R. 37).

         On April 21, 2017, Defendant was released from prison to begin his term of supervision. (See R. 48). On June 7, 2017, Senior United States Probation Officer (SUSPO) Stacey M. Suter submitted a Petition for Warrant or Summons for Offender under Supervision, notifying the presiding District Judge that Defendant had not complied with conditions of his supervision. (See R. 41). Officer Suter recommended a warrant issue for Defendant's arrest. (See id.). A warrant issued, and Defendant was brought before the undersigned for an initial appearance as to the alleged violations. (See R. 47). At this initial proceeding the charged violations, which had been presented to the Court via the Probation Officer's June 7, 2017, Violation Report (see R. 48), were reviewed with the Defendant and the matter scheduled for a Final Revocation Hearing. Upon call of this case at the scheduled Final Hearing, the Court also reviewed with Defendant the June 20, 2017, Violation Report Addendum prepared by SUSPO Suter, which Addendum added an additional violation charge. (See R. 52). As discussed above, during the Final Revocation Hearing counsel informed the Court the parties had reached an agreement: Defendant was prepared to admit his guilt to the violations as set forth in the Violation Report and Addendum, and the parties agreed on a recommended sentence of imprisonment of 6 months with 15 years of supervised release to follow.

         At the initial appearance, the undersigned explained to Defendant the statutory maximum term of incarceration and supervised release as well as the applicable Guidelines range. A change in the applicable Guidelines range resulting from the charge added by the June 20, 2017, Addendum was also explained to Defendant at the start of the final proceeding. The undersigned further explained during the final hearing that while a recommendation of an appropriate sentence will be made to the presiding District Judge, it is ultimately the decision of the presiding District Judge as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to plead guilty to the violations set forth in the June 7, 2017, Violation Report and June 20, 2017, Addendum of the United States Probation Officer. Specifically, Defendant admitted to the following violations of supervised release and the factual circumstances set forth below:

Violation No. 1: The Defendant shall not possess or use a computer or any device with access to any on-line computer service at any location, including place of employment, without the prior written approval of the probation officer. This includes any Internet Service provider, bulletin board system, or any other public or private network or email system (Grade C violation).

         On June 2, 2017, SUSPO Suter and Supervising U.S. Probation Officer Anthony Josselyn conducted a home visit with Defendant at his residence, during which he produced his cell phone for inspection. The Officers determined Defendant's cell phone had Internet access capabilities and that he had been accessing the Internet via his cell phone without the approval of the U.S. Probation Office.

Violation No. 2: The Defendant shall not possess, view, listen to, or go to locations where any form of pornography, sexually stimulating performances, or sexually oriented material, items, or services are available (Grade C violation).

         Defendant's cell phone, which had been held by the Probation Officers following the June 2, 2017, initial inspection, was further inspected by the U.S. Probation Office on June 5, 2017. During that further inspection it was determined that Defendant had been accessing a free pornography website on which he had been viewing forced videos.

Violation No. 3: The Defendant shall register as a sex offender as prescribed by state or federal law (Grade C violation).

         Shortly after Defendant's release from prison, he took up residence at the Travelodge in Florence, Kentucky per the U.S. Probation Office's instruction, after Officer Suter informed Defendant his mother's address where he was then living was not an acceptable residential location for registry purposes. On or about May 5, 2017, he left the Travelodge and took up residence with a family member in Bromley, Kentucky, which was a prohibited residential location for state registry purposes. He did not report this change in residence to Officer Suter, but rather continued to represent to her that he was staying at the Travelodge. He also did not report this change for state registry requirements. Additionally, the June 5, 2017, inspection of Defendant's cell phone by U.S.

         Probation revealed Defendant had created an email address, powersrobert313@gmail.com. Upon the U.S. Probation Office's contact with the Kentucky State Police sex offender registry office, it was learned that ...


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