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United States v. Ybarra

United States District Court, N.D. Texas, Wichita Falls Division

March 10, 2017

UNITED STATES OF AMERICA
v.
DAVID YBARRA

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         The 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”).

         I. PROCEDURAL BACKGROUND

         A. Original Conviction

         On 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. Case”).

         Thereafter, 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 days. Id.

         On 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, 2017. Id.

         On 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.

         B. Current Revocation Proceedings

         1. Procedural History

         On 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. Id.

         Defendant 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.

         On 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.

         On 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.

         2.Violation Allegations

         As indicated above, a violator's warrant was issued and Defendant was arrested for allegedly violating terms of his supervised release.

         a. The Petition for Offender Under Supervision filed October 17, 2016 described the alleged violations as follows:

         Violation of Mandatory Conditions

         The defendant shall not commit another federal, state, or local crime.

         The 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 Court.

         Violation of Standard Condition No. 7

         The 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.

         Violation of Special Condition

         The 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 probation officer.

         Nature of Noncompliance

         David 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 ...


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