United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge.
September 25, 2017, this matter came before the Court for a
Final Revocation Hearing on the United States Probation
Office's Report that Defendant Gary Mays had violated
conditions of his supervised release. Defendant was present
in Court and represented by court-appointed counsel Chris
Jackson, and the Government was represented by Assistant
United States Attorney Laura Voorhees. U.S. Probation Officer
Allison Biggs was also present for this proceeding.
call of this matter at the Final Revocation Hearing, counsel
informed the Court that they had reached an agreement on the
pending violations. Specifically, Defendant agreed to admit
to the violations alleged in the August 29, 2017 Violation
Report (R. 27) and waive his right to allocute before
District Judge Bunning and his right to appeal any sentence
imposed by Judge Bunning to the extent it is consistent with
this Report and Recommendation. In exchange, the Government
agreed to recommend a term of incarceration of 11 months with
no new term of supervision to follow.
consideration, the parties' agreement is an appropriate
proposed disposition of this matter. Therefore, it will be
recommended that Defendant's supervised release be
revoked and that he be sentenced to an 11-month term of
imprisonment with no supervised release to follow.
18, 2011, Defendant pleaded guilty in the U.S. District Court
for the Southern District of Ohio to bank robbery in
violation of 18 U.S.C. § 2113(a). On November 1, 2011,
the District Judge entered Judgment, sentencing Defendant to
a total term of imprisonment of 58 months with a 3-year term
of supervised release to follow. (R. 1-3). In addition,
Defendant was ordered to pay a $100 special assessment, a $1,
500 fine, and $13, 615 in restitution, jointly and severally
with his co-Defendants.
5, 2015, Defendant was released from prison to begin his term
of supervision through the U.S. Probation Office in
Covington, Kentucky. (R. 9). On September 21, 2015, presiding
District Judge Bunning accepted transfer of jurisdiction
regarding this case. (R. 1).
January 6, 2016, Defendant appeared in Court on charges he
violated his supervision (R. 8) as set forth in the Probation
Office's January 5, 2016, Violation Report (R. 9). At the
January 13, 2016, Final Revocation Hearing, Defendant
admitted to violating conditions of his supervised release.
(R. 12). Specifically, Defendant admitted that he violated
conditions of his federal supervised release by using
marijuana, being in possession of marijuana which constitutes
conduct violative of federal law, and failing to make regular
monthly payments toward his court-ordered obligations.
(See R. 15). The undersigned recommended the
District Judge accept the parties' proposed agreed
sentencing recommendation of a 5-month term of imprisonment
and a 31-month term of supervision to follow. (Id.).
On January 22, 2016, Judge Bunning adopted the Report and
Recommendation, revoked Defendant's supervision, and
sentenced him as recommended by the undersigned and agreed
upon by the parties. (R. 16; R. 18). Certain special
conditions agreed upon by the parties were also added to
Defendant's new term of supervision. (R. 18, at 4).
28, 2016, Defendant was released from prison to begin his new
31-month term of supervision by U.S. Probation. (See
R. 27). On August 4, 2016, the Court entered an Order
requiring Defendant to make $25.00 monthly restitution
payments. (R. 19). Defendant's conditions of supervision
were subsequently modified on February 9, 2017, to include a
4-month period of home detention with electronic monitoring
after Defendant had been stopped and arrested by local police
for speeding, operating a vehicle under the influence, and
failing to yield the right-of-way. (R. 20). This modification
of his supervision conditions was ordered after Probation
Officer Biggs reported to Judge Bunning that Defendant had
been drinking alcohol, incurred new state criminal charges,
been disrespectful to local law enforcement, failed to be
truthful to the Probation Officer upon discussion of the
matter, and been failing to maintain employment and make
regular payments toward his restitution. (Id.).
Defendant's conditions of supervision were subsequently
modified once again on March 15, 2017, by imposing a 4-month
period of home detention, this time with GPS monitoring
rather than electronic monitoring. (R. 21). This modification
was ordered after Officer Biggs reported that Defendant was
not complying with his residence restrictions and had not
been truthful with the Probation Officer upon inquiry about
the circumstances. (Id.).
August 31, 2017, Officer Biggs petitioned for Defendant to
appear before the Court regarding further alleged violations
of his supervision. (R. 22). Defendant subsequently initially
appeared on September 11, 2017. (R. 25). The charged
violations were presented to the Court via the Probation
Officer's August 29, 2017, Violation Report. (R. 27). The
violation charges were reviewed with Mr. Mays, the potential
penalties were explained, and a final revocation hearing was
scheduled. (R. 25). As noted above, upon call of the case for
the final revocation hearing, counsel informed the Court that
the parties had reached an agreement: Mr. Mays was prepared
to admit to the violations, and the parties agreed on a
recommended sentence of 11 months of incarceration with no
new term of supervised release to follow.
final hearing, the undersigned reviewed with Defendant the
statutory maximum terms of incarceration and supervised
release as well as the applicable Sentencing Guidelines
range. The undersigned further explained that while a
recommendation of an appropriate sanction will be made to the
presiding District Judge, it is ultimately Judge
Bunning's decision as to the final sentence to be
imposed. Defendant acknowledged his understanding and stated
it was his desire to admit to the alleged violations set
forth in the August 29, 2017 Violation Report. Specifically,
Mr. Mays admitted under oath to the following violations of
supervised release and the factual circumstances set forth
No. 1:If the judgment imposes a fine or
restitution, it is a condition of supervised release that the
defendant pay in accordance with the Schedule of Payments
sheet of this judgment.
Mays admitted that he had not complied with his restitution
payment schedule of $25.00 per month as ordered by the Court
on August 3, 2016. At the time of the August 29, 2017,
Violation Report, he had made three payments totaling $105.00
toward his obligation.
No. 2:The defendant shall notify the probation
officer at least ten days prior to any ...