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United States v. Mays

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

December 6, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
GARY MAYS DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge.

         On 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.

         Upon 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.

         Upon 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.

         I. Procedural Background

         On May 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.

         On June 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).

         On 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).

         On June 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.).

         On 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.

         At the 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 below:

         Violation 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.

         Mr. 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.

         Violation No. 2:The defendant shall notify the probation officer at least ten days prior to any ...


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