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United States v. McKinley

United States District Court, E.D. Texas, Tyler Division

April 8, 2019

UNITED STATES OF AMERICA
v.
MICHAEL SHON McKINLEY (14)

          REPORT AND RECOMMENDATION ON REVOCATION OF SUPERVISED RELEASE

          K. MCOl4 MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         On April 8, 2019, the Court held a final revocation hearing on a Petition for Warrant or Summons for Offender under Supervision. The Government was represented by Assistant United States Attorney Allen Hurst. Defendant was represented by Assistant Federal Defender Matt Millslagle.

         Background

         After pleading guilty to the offense of Possession with Intent to Distribute Methamphetamine, a Class C felony, Michael Shon McKinley (“Defendant”) was sentenced on August 24, 2016 by United States District Judge Michael H. Schneider. This offense carried a statutory maximum imprisonment term of 20 years. The guideline imprisonment range, based on a total offense level of 15 and a criminal history category of VI, was 41 to 51 months. Defendant was sentenced to 37 months of imprisonment followed by a 3-year term of supervised release subject to the standard conditions of release, plus special conditions to include financial disclosure, drug after-care, mental health treatment, alcohol abstinence and a $100 special assessment. Defendant completed his term of imprisonment and began his term of supervised release on August 20, 2018. On February 5, 2019, the case was transferred to United States District Judge Jeremy D. Kernodle.

         Allegations

         In the petition seeking to revoke Defendant's supervised release, filed on February 6, 2019, United States Probation Officer Lupe Saucedo alleges that Defendant violated the following conditions of supervised release:

1. Allegation 1 (standard condition 2): The defendant shall report to the probation officer in a manner and frequency directed by the Court or probation officer. It is alleged that Defendant failed to report to the probation officer for scheduled appointments on January 17, 2019 and January 28, 2019. It is also alleged that Defendant failed to submit an online report for January 2019.
2. Allegation 2 (standard condition 6): The defendant shall notify the probation officer at least ten days prior to any change in residence or employment. It is alleged that Defendant moved to an unknown residence without notifying the probation officer and his whereabouts were unknown.
3. Allegation 3 (standard condition 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 substances, except as prescribed by a physician. It is alleged that Defendant submitted a urine specimen on September 11, 2018 that tested positive for cocaine and that he signed an admission form admitting to cocaine use.
4. Allegation 4 (standard condition 10): The defendant shall permit a probation officer to visit him at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer. It is alleged that Defendant was scheduled for a home visit on January 15, 2019 between 10:00 a.m. and 12:00 p.m., but Defendant was not home.
5. Allegation 5 (special condition): The defendant shall participate in a program of testing and treatment for alcohol and drug abuse, under the guidance and direction of the U.S. Probation Office, until such time as the defendant is released from the program by the probation officer. It is alleged that Defendant failed to submit urine samples as required by the Random Drug Testing Program on January 14, 17, 25, and 30, 2019, and February 4, 2019. It is also alleged that Defendant failed to attend a scheduled counseling session with Licensed Professional Counselor Sherry Young on January 18, 2019 at 9:00 a.m.
6. Allegation 6 (special condition): The defendant shall participate in a program of psychiatric and mental health services and shall comply with any medication requirements as prescribed by the treatment provider. It is alleged that Defendant failed to attend scheduled counseling sessions with Licensed Mental Health Counselor Alison Bernard on January 14, 2019 at 3:00 p.m. and January 27, 2019 at 4:00 p.m.

         Applicable Law

         According to 18 U.S.C. § 3583(e)(3), the Court may revoke the term of supervised release and require a Defendant to serve in prison all or part of the term of supervised release without credit for the time previously served under supervision, if it finds by a preponderance of the evidence that Defendant violated a term of supervised release. Supervised release shall be revoked upon a finding of a Grade A or B supervised release violation. U.S.S.G. § 7B1.3(a)(1). In the present case, Defendant's original offense of ...


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