United States v. Denny

John Johnston United States Magistrate Judge

Defendant Delwayne Denny (Denny) has been accused of violating the conditions of his supervised release. Denny admitted all of the alleged violations except alleged violation 10. The Court dismissed alleged violation 10 on the government's motion. Denny's supervised release should be revoked. Denny should be placed in custody for 6 months, with 109 months of supervised release to follow. Denny should receive credit for time served since May 15, 2020.

Denny pleaded guilty to Sexual Abuse on January 29, 2013. (Doc. 24). The Court sentenced Denny to 85 months of custody, followed by 10 years of supervised release. (Doc. 32). Denny's current term of supervised release began on May 7, 2019. (Doc. 60 at 1).

Petition

The United States Probation Office filed a Third Amended Petition on November 26, 2019, requesting that the Court revoke Denny's supervised release. (Doc. 60). The Third Amended Petition alleges that Denny violated the conditions of his supervised release: 1) by failing to notify his probation officer of a change in residence; 2) by failing to report for substance abuse testing; 3) by using methamphetamine; 4) by failing to report for substance abuse treatment; 5) by committing another crime; and 6) by consuming alcohol.

Initial appearance

Denny appeared before the undersigned for his initial appearance on the Third Amended Petition on May 28, 2020. Denny was represented by counsel. Denny stated that he had read the petition and that he understood the allegations. Denny waived his right to a preliminary hearing. The parties consented to proceed with the revocation hearing before the undersigned.

Revocation hearing

The Court conducted a revocation hearing on May 28, 2020. Denny admitted that he had violated the conditions of his supervised release: 1) by failing to notify his probation officer of a change in residence; 2) by failing to report for substance abuse testing; 3) by using methamphetamine; 4) by failing to report for substance abuse treatment; and 5) by committing another crime. The Court dismissed alleged violation 10 on the government's motion. The violations that Denny admitted are serious and warrant revocation of Denny's supervised release.

Denny's violations are Grade C violations. Denny's criminal history category is II. Denny's underlying offense is a Class A felony. Denny could be incarcerated for up to 60 months. Denny could be ordered to remain on supervised release for up to 116 months, less any custody time imposed. The United States Sentencing Guidelines call for a term of custody of 4 to 10 months.

Denny's supervised release should be revoked. Denny should be incarcerated for 6 months, with 109 months of supervised release to follow. Denny should receive credit for time served since May 15, 2020. This sentence is sufficient but not greater than necessary.

The Court informed Denny that the above sentence would be recommended to United States District Judge Brian Morris. The Court also informed Denny of his right to object to these Findings and Recommendations within 14 days of their issuance. The Court explained to Denny that Judge Morris would consider a timely objection before making a final determination on whether to revoke his supervised release and what, if any, sanction to impose. The Court FINDS:

That Delwayne Denny violated the conditions of his supervised release: by failing to notify his probation officer of a change in residence; by failing to report for substance abuse testing; by using methamphetamine; by failing to report for substance abuse treatment; and by committing another crime.

That the District Court revoke Denny's supervised release and commit Denny to the custody of the United States Bureau of Prisons for a term of 6 months, with 109 months of supervised release to follow. Denny should receive credit for time served since May 15, 2020.

The parties may serve and file written objections to the Findings and Recommendations within 14 days of their entry, as indicated on the Notice of Electronic Filing. 28 U.S.C. § 636(b)(1). A United States district court judge will make a de novo determination regarding any portion of the Findings and Recommendations to which objection is made. The district court judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district court judge, and may waive the right to appear and allocute before a district court judge.

DATED this 1st day of June, 2020.

/s/_________

John Johnston

United States Magistrate Judge