United States District Court, E.D. Texas
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
A. CRONE UNITED STATES DISTRICT JUDGE.
for consideration the above-referenced criminal action, the
Court having heretofore referred the request for revocation
of Defendant's supervised release to the United States
Magistrate Judge for proper consideration. On April 5, 2017,
the report of the United States Magistrate Judge (#20) was
entered containing proposed findings of fact and
recommendations that Defendant's supervised release be
revoked. The Court has received the report of the Magistrate
Judge pursuant to its order, as well as Defendant's
objections thereto (#22).
made a de novo review of the objections raised by
the Defendant, the Court is of the opinion that the findings
and conclusions of the Magistrate Judge are correct and
Defendant's objections are without merit.
on the record before the Court, Defendant has shown an
extensive history of noncompliance with his conditions of
supervised release. Defendant entered a plea of true to all
six (6) allegations, and the objections consist of nothing
more than re-urging the same explanations and excuses already
considered by the Magistrate Judge. The Court also notes that
Defendant's current counsel of record, Temani Adams
(“Ms. Adams”),  did not represent Defendant at
either the detention hearing on March 6, 2017, or the final
revocation hearing on April 4, 2016. Nor is there any record
before the Court that Ms. Adams requested transcripts of
these proceedings. Thus, despite the offering of purported
“new evidence” in support of Defendant's
objections (see #22), the record demonstrates that
evidence to the same effect was adduced via testimony and
argument at the prior proceedings.
example, Defendant's first objection asserts that based
on the prior history of email communications between
Defendant and his probation officer, Defendant assumed it was
acceptable to merely provide notice of travel, rather than
seeking prior approval, . However, Jacob Gilbert, U.S.
Probation Officer (“Officer Gilbert”), testified
at the March 6, 2017, detention hearing that he had
repeatedly warned Defendant that travel must be pre-approved.
Furthermore, Defendant's own evidence refutes his
argument. In an email from Defendant to Officer Gilbert dated
January 5, 2017, at 10:08 a.m., Defendant stated, “I
had to run to Illinois for a few days to attend [a]
funeral.” See #22 at 12. Approximately twenty
(20) minutes later, Officer Gilbert replied “travel
must be requested beforehand and not after the fact.”
Id. In another email exchange dated September 1,
2016, Defendant advised he would be in Kansas City, Missouri,
to which Officer Gilbert replied that the travel was denied
and Defendant needed to call him. See #22-2 at 4.
other objections are equally unavailing. Defendant argues
that because his job at Mercedes Benz of McKinney was a
second job, he did not change jobs and, therefore, was not
required to notify his probation officer. See #22 at
2. The Court declines to adopt Defendant's narrow
interpretation of the requirement that “he shall notify
the probation officer at least ten days prior to any change
in employment.” See #2 at 2. The fact that
Defendant took a second job that allegedly required him to
travel outside the district validates the rationale for prior
notification, since prior notification allows the opportunity
for the probation officer to work with Defendant to ensure
compliance with conditions.
attempts to advance a similarly narrow interpretation of the
requirement that he “notify his probation officer
within seventy-two hours of being arrested or questioned by a
law enforcement officer.” Id. at 3. Defendant
was pulled over for a traffic violation in Franklin County,
Kansas while traveling late at night without approval.
Id. The Court is not persuaded by Defendant's
argument that because the traffic stop “was not in the
context of an interrogation, or the seeking of criminal
information” (see #22 at 3), the requirement
to notify his probation officer was somehow abrogated.
in light of the allegations that Defendant testified positive
for marijuana use in August and September 2016, and failed to
submit urine samples in October 2016 and January 2017
(see #2), the Court is also unpersuaded by
Defendant's excuses for his failure to attend scheduled
treatment abuse sessions in December 2016, and January and
February 2017. See id. These violations serve only
to further demonstrate Defendant's disregard for
complying with the conditions of his supervised release.
on the foregoing, the Court finds that Defendant has
repeatedly failed to comply with the conditions of his
supervised release and hereby overrules Defendant's
objections and adopts the Magistrate Judge's findings and
conclusions that Defendant's supervised release should be
revoked as the findings and conclusions of the Court.
accordingly ORDERED that Defendant's supervised release
is REVOKED. As Defendant did not waive his right to appear
before the district judge for allocution and sentencing, an
allocution and sentencing hearing is hereby set for Monday,
May 8, 2017, at 11:00 a.m. before the Honorable Marcia A.
Crone in Courtroom 108, 7940 Preston Road, Plano, Texas
 The Court notes that Ms. Adams is
Defendant's third retained counsel since the filing of
the Petition on February 24, 2017. Ms. Adams was substituted
as Defendant's attorney of record on April 20, 2017.
See #23. Talmadge Nix (“Mr. Nix”) was
Defendant's attorney of record at his initial appearance
on March 3, 2017 (#6) and at his detention hearing on March
6, 2017 (#10). On March 24, Christopher Woodward (“Mr.
Woodward”) was substituted as attorney of record ...