3. On May 14, 1999, Mr. Allen appeared before the court for a
violation of probation hearing. The court found that Mr. Allen
had violated his home detention conditions numerous times and
revoked his probation. The court sentenced Mr. Allen to a term of
imprisonment of six months, followed by three years of supervised
release. Alleged violations of the conditions of this term of
supervised release are bases of the instant revocation action. p.
4. One of the standard conditions of Mr. Allen's supervised
release is that he report to the probation officer as directed by
the court or the probation officer and that he submit a truthful
and complete written report within the first five (5) days of
5. As detailed in the Probation Office's petition for
revocation, from April 2000 until May 2001, Mr. Allen missed 37
scheduled appointments with his probation officer. Mr. Allen has
maintained contact with the Probation Office during this time,
but has consistently ignored scheduled appointments. Accordingly,
the court finds that Mr. Allen violated one of his standard
conditions of supervised release.
6. One of the special conditions of Mr. Allen's supervised
release is that he pay his outstanding restitution in such terms
as the Probation Office determines, subject to the court's
7. On September 2, 2000, the court signed a Graham Petition
ordering Mr. Allen to make monthly restitution payments of
8. Mr. Allen has failed to comply with this order. On November
20, 2000, he paid $120.00; on March 9, 2001, he paid $50.00; and
on April 16, 2001, he paid $25.00. The current restitution
balance is $9,296.01. Accordingly, the court finds that Mr. Allen
violated one of his special conditions of supervised release.
9. Over the past year, Mr. Allen has maintained steady
employment and has recorded a positive monthly cash flow of
$900.00 to $1,200.00.
Conclusions of Law
10. Mr. Allen's failure to attend numerous scheduled
appointments with his probation officer constitutes a Grade C
violation of one of his standard conditions of supervised
release. See U.S.S.G. § 7B1.1(a)(3).
11. Mr. Allen's failure to make monthly court-ordered
restitution payment in the amount of $375.00 constitutes a Grade
C violation of one of his special conditions of supervised
release. See id.
12. Upon a finding of a Grade C violation, the court may revoke
supervised release or extend and/or modify the conditions of
13. The original offense in this case was a Class D felony.
Therefore, the maximum penalty of imprisonment upon revocation of
supervised release is limited to two years.
18 U.S.C. § 3583(e)(3).
14. When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment that is
less than the maximum term of imprisonment authorized by section
3583(e)(3), the court may reimpose a term of supervised release.
The length of such term shall not exceed the term of supervised
release authorized by the statute for the offense that resulted
in the original term of supervised release, less any term of
imprisonment imposed upon revocation of supervised release.
18 U.S.C. § 3583(h). The maximum term of supervised release for
Mr. Allen's original offense was three years. See
18 U.S.C. § 3583(b)(2).
15. In determining whether to modify or revoke supervised
release, the court is to consider certain factors, including the
nature and circumstances of the offense; the history and
characteristics of the defendant; and the need for the sentence
to provide just punishment, deterrence, protection of the public,
and assistance to the defendant. 18 U.S.C. § 3583 (a), (e).
Additional factors to be considered include the types of sentence
available, relevant policy statements, and the need to avoid
sentencing disparities. Id.
16. Section 3553(a)(4)(B) states that the court shall consider
the applicable Sentencing Commission guidelines and policy
statements in imposing sentences on or after September 13, 1994,
for violations of probation and supervised release. However, the
Third Circuit affirmed in United States v. Schwegel,
126 F.3d 551 (3d Cir. 1997), that the ranges set out in U.S.S.G. § 7B1.4
are not guidelines but rather policy statements and, as such, are
advisory and are not binding. Therefore, the court may impose a
sentence outside those ranges.
17. The guideline range of imprisonment for a defendant who has
a criminal history category of I and commits a Grade C violation
is three to nine months imprisonment. U.S.S.G. § 7B1.4(a).
18. Considering the nature and circumstances of the offenses;
the history and characteristics of the defendant; and the need
for the sentence to provide just punishment, deter the defendant
and others, protect the public, and assist the defendant, the
court finds that a revocation of Mr. Allen's supervised release
is warranted. He shall be sentenced to a period of nine (9)
months imprisonment, followed by a one (1) year term of
supervised release, subject to the standard conditions of
supervision set forth in his original Judgment and Conviction
Order and subject to the condition that he pay his outstanding
restitution in such terms as the Probation Office determines from
time to time subject to the court's approval.
An appropriate Order follows.
AND NOW, this 12 day of July, 2001, upon consideration of the
Probation Office's petition, after a hearing pursuant to Fed. R.
Crim. P. 32.1, and based upon the foregoing findings of fact and
conclusions of law, it is hereby ORDERED that the petition is
GRANTED as follows:
1. The Defendant's supervised release is REVOKED;
2. The Defendant is committed to the custody of the
United States Bureau of Prisons to be imprisoned
for a term of nine (9) months;
3. The term of imprisonment shall be followed by a period
of supervised release of one (1) year, subject to the
standard conditions of supervision set forth in his
original Judgment and Conviction Order, and subject to
the condition that he pay his outstanding restitution
in such terms as the Probation Department determines
from time to time subject to the court's approval; and
4. The Defendant shall surrender to the Bureau of Prisons
within two weeks of the date of this Order.
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