United States District Court, E.D. Texas, Tyler Division
REPORT AND RECOMMENDATION ON REVOCATION OF SUPERVISED
MCOl4 MITCHELL, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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 ...