United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
undersigned submits these Findings, Conclusions, and
Recommendation to U.S. District Judge Reed O'Connor
pursuant to 28 U.S.C. § 636(b) and the Order of
Reference dated February 28, 2017. ECF No. 20. The Court
conducted a hearing on March 6, 2017, and heard arguments
from all of the parties and evidence with regard to the
Petition for Offender Under Supervision filed against DAVID
YBARRA (the “Defendant”).
October 21, 2013, Senior U.S. District Judge John D. Rainey
of the Southern District of Texas sentenced the Defendant to
twelve months and one day imprisonment, followed by three
years of supervised release, as a result of a guilty plea to
count one of a four count indictment charging him with
Conspiracy to Harbor and Transport Unlawful Aliens, a
violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(a)(1)(A)(iii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). Document
No. 53 in Case 2:13-cr-00491-S-002 (“S.D. Tex.
the Defendant completed his period of imprisonment and began
service of the supervision term. On January 23, 2015, U.S.
District Judge Randy Crane found that the Defendant violated
a mandatory condition of his release by illegally possessing
and unlawfully using a controlled substance. Document No.
151, S.D. Tex. Case. Judge Crane modified the Defendant's
supervision to include a special condition of participation
in a residential re-entry center for a period of up to 90
April 22, 2015, Judge Crane revoked the Defendant's
supervision for failure to participate as directed in a drug
treatment program. Document No. 160, S.D. Tex. Case.
Defendant was sentenced to time served and continued
supervised release until the date of expiration, March 12,
April 19, 2016, jurisdiction was transferred from the
Southern District of Texas to the Northern District of Texas
with an Order Transferring Jurisdiction signed by U.S.
District Judge Reed C. O'Connor accepting jurisdiction.
ECF No. 1.
Current Revocation Proceedings
October 17, 2016, the United States Probation and Pretrial
Services Office prepared a Petition for Offender Under
Supervision, requesting that Judge O'Connor issue a
violator's warrant for Defendant's arrest after he
violated certain conditions of supervised release discussed
below. ECF No. 4. Judge O'Connor ordered the issuance of
a warrant in response to the Petition on that same day.
appeared before U.S. Magistrate Judge Jeffrey L. Cureton on
October 27, 2016 for an initial appearance and probable cause
and detention hearing. Magistrate Judge Cureton apprised the
Defendant of his rights, found probable cause that he had
committed the violations of conditions of supervised release
as stated in the Petition, and released the Defendant on the
same conditions of supervised release as had previously been
imposed pending a Final Revocation Hearing scheduled for
December 19, 2016 before Judge O'Connor. ECF No. 10.
November 30, 2016, the United States Probation and Pretrial
Services Office prepared a Supplemental Petition for Offender
Under Supervision and requested that Judge O'Connor order
the issuance of another arrest warrant for Defendant. ECF No.
14. Judge O'Connor ordered the issuance of that warrant
on the same day. Id.
December 19, 2016, the Defendant failed to appear at the
Final Revocation Hearing before Judge O'Connor, and the
Court ordered the Clerk to issue a warrant for his arrest.
ECF Nos. 16 and 17. The Defendant was arrested by officials
of the Hidalgo County Sheriff's Office on December 29,
2016. ECF No. 19.
indicated above, a violator's warrant was issued and
Defendant was arrested for allegedly violating terms of his
Petition for Offender Under Supervision filed October 17,
2016 described the alleged violations as follows:
of Mandatory Conditions
defendant shall not commit another federal, state, or local
defendant shall not unlawfully possess a controlled
substance. The defendant shall refrain from any unlawful use
of a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and at
least two periodic tests thereafter, as determined by the
of Standard Condition No. 7
defendant shall refrain from excessive use of alcohol and
shall not purchase, possess, use distribute, or administer
any controlled substance or any paraphernalia related to any
controlled substance, except as prescribed by a physician.
of Special Condition
defendant shall participate in a program, inpatient or
outpatient, for the treatment of drug and/or alcohol
addiction, dependency or abuse which may include, but not
limited to urine, breath, saliva, and skin testing to
determine whether the defendant reverted to the use of drugs
and/or alcohol. Further, the defendant shall participate as
instructed and as deemed necessary by the probation officer
and shall comply with all rules and regulations of the
treatment agency until discharged by the Program Director
with the approval of the probation officer. The defendant
shall further submit to such drug-detection techniques, in
addition to those performed by the treatment agency, as
directed by the probation officer. The defendant will incur
costs associated with such drug/alcohol detection and
treatment, based on ability to pay as determined by the
Ybarra violated these conditions of supervised release by
using and possessing cocaine and hydrocodone, illegal
controlled substances, in or about March 2016. On March 21,
2016, Mr. Ybarra submitted a urine specimen to U.S. Probation
Officer (USPO) James Williams at 1006 South 8th Street,
Paducah, Texas, which tested positive for cocaine and
opiates. Furthermore, the urine sample was ...