Opinion
Cr. No. 94-029-01 (TFH/AK).
March 21, 2005
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge by the Honorable Thomas F. Hogan, Chief Judge for a Hearing on Violation of Probation and a Report and Recommendation.
Background
The Defendant, Ronald Bailey, appeared before the trial court for sentencing on March 15, 1996, following a plea of guilty on Conspiracy to Commit Extortion, in violation of 18 U.S.C. § 371; First Degree Theft, in violation of 22 D.C.C. § 3811; Conspiracy to Distribute and Possession with Intent to Distribute 5 Kilograms of More of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(A)(ii), and 846. According to the Judgment entered in Criminal Case No. 94-029-01 the Defendant was "committed to the custody of the U.S. Bureau of Prisons to be imprisoned for a term of NINETY SIX (96) MONTHS, SIXTY (60) MONTHS on Count 1, FIVE (5) YEARS on Count 2 in this case, and NINETY SIX (96) MONTHS on Count 2 of the indictment in CR 93-451-04." The two counts to run concurrently with each other. According to the Judgment entered in Criminal Case No. 93-45-04 the Defendant was "committed to the custody of the U.S. Bureau of Prisons to be imprisoned for a term of NINETY SIX (96) MONTHS, SIXTY (60) MONTHS on Count 1 of the information, FIVE (5) YEARS on Count 2 of the information, and NINETY SIX (96) MONTHS on Count 2 of the indictment. Defendant to be given credit for time served as of December 14, 1994. These two counts are to run concurrently to each other."
The following special conditions were ordered: 1) that the Defendant pay a special assessment of $50 in each case; 2) that he not be employed in any law enforcement or security related field; 3) that he participate in alcohol abuse counseling; and 4) that he not possess a firearm or destructive device. Supervised release began on December 1, 2000 and is scheduled to terminate on November 30, 2005.
On April 2, 2004, the Court was advised that Mr. Bailey had been arrested in Howard County, Maryland and charged with Disorderly Conduct and Making False Statements to a Police Officer. Mr. Bailey pled guilty to Disorderly Conduct on March 11, 2004 and he was placed on unsupervised probation for a period of one year. No action was taken on that conviction. On October 10, 2004, Mr. Bailey was arrested by the Washington Metropolitan Area Transit Authority Police Department and charged in the District Court of Maryland for Prince George's County with Uttering Forged Currency and Resisting Arrest. According to the Memorandum to the trial court dated October 9, 2004, the Probation Officer reported that, on October 16, 2004, he received notification from NCIC indicating subsequent offenses pertaining to an arrest identifying the Defendant with recent charges.
A police report obtained from the WMATA police department and a copy of the details from the offense in the District Court of Maryland for Prince George's County, it indicates that Mr. Bailey was arrested by the WMATA police officers and charged with Uttering Forged U.S. Currency and Resisting Arrest. On October 11, 2004, Mr. Bailey was released on a $3,000 cash bond. According to the police report, the Defendant was observed driving a 1988 Toyota Corolla displaying counterfeit Maryland tags in the rear window of the vehicle. A traffic stop identified Mr. Bailey as the driver of the vehicle and the vehicle was determined to be unregistered and uninsured. During a search of the vehicle, the officers discovered 15 counterfeit $20 bills of U.S. currency under the driver's seat. When the officers advised Mr. Bailey that he would be placed under arrest, he fled the scene. He was pursued and arrested 75 yards from the location of the investigation. Special agents of the United States Secret Service responding to the crime scene confirmed that the twenty dollar bills were counterfeit.
On October 14, 2004, Mr. Bailey left a voice mail for his Probation Officer advising of the new arrest. Several attempts were made to contact Mr. Bailey regarding the new charge, without success. On November 3, 2004, the Probation Office filed a Form 12 Request for Course of Action, alleging the October 10, 2004 arrest by WMATA police and charges pending in the District Court of Maryland for Prince George's County.
Hearing on Violation of Probation
A hearing on the alleged violations of the conditions of Mr. Bailey's supervised release was held by the undersigned on January 7, 2005. At the hearing, the Defendant was represented by counsel. The Probation Officer proffered to the Court the allegations set forth in the Form 12 Request for Course of Action and the Memorandum to the trial court dated October 29, 2004. The Defendant concedes that he was arrested on October 10, 2004, and charged in the District Court for Prince George's County in Maryland. He adamantly denies that he uttered forged currency. The Defendant concedes and accepts responsibility for possessing counterfeit temporary automobile tags.
Recommendation
Based upon the incident report presented to the undersigned by the Government indicating that, on October 10, 2004, the Defendant was charged with uttering forged counterfeit tags and United States currency with unlawful intent and resisting lawful arrest, coupled with Mr. Bailey's acknowledgment that he had counterfeit automobile tags, the undersigned finds by a preponderance of the evidence that the Defendant was in violation of the terms and conditions of his supervised release. The Probation Officer also noted that Mr. Bailey's adjustment to supervision has been unsatisfactory, advising that Mr. Bailey was originally released to the District of Maryland for supervision but thereafter transferred back to the District of Columbia for supervision in 2003 because of a residence move into the District of Columbia. Throughout the past three years of supervision, Mr. Bailey has been employed as a delivery driver. He has paid his two special assessments as directed by the trial court, and timely submitted his monthly supervision reports. The Probation Officer further reported that both arrests constitute Grade B violations, and both occurred within a one year period. The Probation Officer recommends revocation of Mr. Bailey's supervised release and imposition of a period of incarceration of eight months, to be followed by four months in a community corrections center and twelve months supervised release. The Government recommends revocation of his supervised release and imposition of a sentence of nine months to be followed by one year supervised release. The Defendant, through counsel, requested that he be sentenced at the low end of the Advisory Sentencing Guidelines Range with part of the sentence to be served at a community corrections center or home detention. It was represented that the Defendant is currently gainfully employed.
Options Available to the Court
According to the Probation Office, the alleged violations constitute Grade B violations, pursuant to U.S.S.G. § 7B1.19a) (2). Pursuant to the Revocation Table set forth at U.S.S.G. § 7B1.4, a Grade B violation coupled with a Criminal History Category I (which was determined at the time of sentencing) produces a custodial range of 4 to 10 months. U.S.S.G. § 7B1.3(a)(1) indicates that upon a finding of a Grade B violation, the trial court shall revoke supervised release.
With respect to the underlying conviction, which is a Class A felony, the maximum term of imprisonment which can be imposed upon revocation is five years. 18 U.S.C. § 3583(e)(3). However, if the trial court revokes supervised release and orders a custodial sentence which is less than the maximum term of imprisonment, the trial court may include a requirement that the offender be placed on a term of supervised release following his incarceration. The length of such term of supervised release shall not exceed the term of supervised release authorized by the statute which resulted in the original term of supervised release, less any imprisonment imposed upon revocation. 18 U.S.C. § 3583(h). The Court may order a period of supervised release of at least five years.