United States District Court, Eastern District of Pennsylvania
October 3, 2002
UNITED STATES OF AMERICA
GARY SEGARS, DEFENDANT.
The opinion of the court was delivered by: Marvin Katz, Senior Judge
MEMORANDUM & ORDER
On March 7, 2000, Gary Segars pled guilty to Interference with
Interstate Commerce by Robbery in violation of 18 U.S.C. § 1951. On
June 26, 2001, this court imposed a sentence of 36 months imprisonment
followed by 3 years of supervised release. Mr. Segars' supervised release
commenced on October 23, 2001. Now before the court is a Petition for
Revocation prepared by the Probation Office on August 21, 2002. Upon
consideration of the submissions of the parties, and after a hearing, the
court makes the following findings of fact and conclusions of law.
Findings of Fact
1. A standard condition of defendant's supervised release was that he
not leave the judicial district without permission of the court or
probation officer. Mr. Segars had been released to the District of New
Jersey for supervision, although jurisdiction remained with this court.
2. Mr. Segars admitted to his probation officer on June 18, 2002 that
he was in Philadelphia, Pennsylvania, without permission.
3. Another standard condition of defendant's supervised release was
that he report to his probation officer as directed and submit a written
report within the first five days of each month.
4. Mr. Segars failed to report to the U.S. Probation Office as
instructed on April 15, 2002 and April 22, 2002. Mr. Segars failed to
contact his Probation Officer as instructed on June 13, 2002 concerning
his halfway house placement.
5. Another standard condition of defendant's supervised release was
that he refrain from excessive use of alcohol and not purchase, possess,
use, distribute, or administer any controlled substance or any
paraphernalia related to any controlled substance, except as prescribed by
6. Mr. Segars was placed in an outpatient drug treatment program at
Atlantic Behavioral Health in Atlantic City, New Jersey on October 23,
2001, but on December 1, 2001, Mr. Segars tested positive for cocaine and
alcohol use. During a February 2002 meeting with his Probation Officer,
Mr. Segars admitted to ongoing use of illegal drugs. On June 12, 2002,
Mr. Segars again tested positive for cocaine use in a urinalysis test
administered as part of his Probation Office visit.
7. A special condition of defendant's supervised release was that he
participate in a program of testing for drug and alcohol abuse, as
directed by the probation officer, until such time as he is released from
the program by his probation officer.
8. As directed by his Probation Officer, Mr. Segars entered an
inpatient drug treatment program at The Institute for Human Development
in Atlantic City, New Jersey on March 21, 2002. Mr. Segars did not comply
with several program rules and left against medical advice.
9. Another special condition of his supervised release was that he pay
a special assessment of $100.00 due immediately.
10. Mr. Segars has failed to complete payment of the special
assessment. He last submitted a payment of $20.00 on May 2, 2002; the
remaining balance is $40.00.
11. Another special condition of defendant's supervised release was
that he pay restitution in the amount of $225.00.
12. Mr. Segars has not yet made any payments for restitution. The
account is in default.
Conclusions of Law
1. Revocation of probation is governed by the provisions of
18 U.S.C. § 3565. In determining the modification of probation, the
court is to consider the factors set forth in 18 U.S.C. § 3553(a).
See 18 U.S.C. § 3565(a). These factors include the nature and
circumstances of the offense; the history and characteristics of the
defendant; and the need for the sentence to punish the defendant, deter
the defendant and others, protect the public, and rehabilitate the
defendant. See 18 U.S.C. § 3553(a). The court should also consider
the types of sentences available, relevant policy statements, and the
need to avoid sentencing disparities. See id.
2. If, after considering the foregoing factors, the court finds by a
preponderance of evidence that the defendant has committed the violations
alleged, the court may continue him on probation, with or without
extending the term or modifying or enlarging conditions, or revoke
probation. See 18 U.S.C. § 3565.
3. The Sentencing Guidelines' treatment of revocation of probation is
advisory rather than mandatory and these policy statements are only one
of the factors the court shall consider in addressing modification of
supervised release. See United States v. Schwegel, 126 F.3d 551 (3d Cir.
1997) (holding that supervised release provisions remained advisory after
amendments to 18 U.S.C. § 3583).
4. The Probation Office's petition and the hearing established by a
preponderance of the evidence that defendant has violated six (6)
conditions of his supervised release. The defendant violated the
conditions that he not leave the judicial district of New Jersey without
permission, report to his Probation Officer each month, not use illegal
drugs, participate in a drug testing and treatment program, and pay a
special assessment and restitution. Each incident constitutes a Grade C
violation of supervised release. See U.S.S.G § 7B1.1(a)(3).
5. According to the Guidelines, the court may, upon a finding of a
Grade C violation, revoke supervised release or extend the term of
supervised release and/or modify the conditions of supervision. Id. at
§ 7B1.3 (a)(2).
6. Under the Sentencing Guidelines, the recommended range of
imprisonment is 7 to 13 months imprisonment, as Mr. Segars' criminal
history category is 5 and he has committed a Grade C violation of
supervised release. See id. § 7B1.4.
7. The statutory maximum term of imprisonment upon revocation is 2
years, as Mr. Segars' original offense was a Class C Felony. See
18 U.S.C. § 3583 (e)(3).
8. If a term of imprisonment is imposed, a term of supervised release
may be imposed but is not required. See U.S.S.G. § 7B1.3(g)(1) (where
probation is revoked and term of imprisonment is imposed, U.S.S.G. §§
5D1.1-5D1.3 shall apply); U.S.S.G. § 5D1.1(b) (where a sentence of
imprisonment is not more than one year, court may order a term of
supervised release to follow imprisonment).
7. Upon consideration of 18 U.S.C. § 3553(a), the court revokes the
defendant's supervised release and imposes a sentence of 7 months. The
court does not impose a further term of supervised release following the
conclusion of this sentence.
An appropriate Order follows.
AND NOW, this day of October, 2002, upon consideration of the Petition
for Revocation of Probation, the Government's Proposed Findings of Fact
and Conclusions of Law, and after a hearing, 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 Bureau of Prisons
for a term of seven (7) months; and
3. There shall be no term of supervised release after defendant's
release from imprisonment.
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