The opinion of the court was delivered by: Katz, Senior Judge
On August 31, 1998, Kenyada Armstrong pled guilty to Conspiracy to
Counterfeit and to Pass Counterfeited Obligations of the United States in
violation of 18 U.S.C. § 371. On December 8, 1998, the Honorable
Judge Malcolm J. Howard of the Eastern District of North Carolina imposed
a sentence of four years of probation. On March 1, 1999, jurisdiction of
this case was transferred to the Eastern District of Pennsylvania. Now
before the court is a Petition for Revocation prepared by the Probation
Office on May 17, 2000. Ms. Armstrong was arrested in early October
2002. Upon consideration of the submissions of the parties, and after a
hearing, the court makes the following findings of fact and conclusions
1. A general condition of defendant's probation was that she not leave
this judicial district without permission of the court or probation
2. On April 18, 2000, Ms. Armstrong left her probation officer a voice
mail message admitting that she was in Delaware. On April 21, 2000. Ms.
Armstrong left her probation officer another message saying that she was
leaving Delaware the following night. Ms. Armstrong did not have
Probation's permission to leave this district.
3. Another general condition of defendant's probation was that she
report to her probation officer as directed and submit a truthful and
complete written report within the first five days of each month.
4. Ms. Armstrong failed to report to the U.S. Probation Office on April
5, 2000 as instructed. On April 19, Ms. Armstrong left her probation
officer a voice mail message that she was in the process of moving and
would not be able to report to the Office. Ms. Armstrong failed to
reschedule the Office visit and has not reported to the Probation Office
since March 22, 2000.
5. Another special condition of her probation was that she notify her
probation officer of any change of residence or employment within 10 days
of such change.
6. Ms. Armstrong had lived in an apartment in Pennsylvania provided
through the Gaudenzia Interim House Drug Program. Ms. Armstrong failed to
attend several group sessions, lied about her whereabouts, and violated
several other important rules about the residential program. Her contract
was terminated and she was told to vacate by April 1, 2000. The Probation
Office was unaware of Ms. Armstrong's whereabouts from April 1, 2000
until her recent arrest. On April 4, 2000, Ms. Armstrong left her
probation officer a voice mail message saying that she moved to an
apartment in Philadelphia, but did not provide the address. On April 18,
2000, she told her probation officer that she was in Delaware, but did
not provide her address.
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 her on probation, with or without
extending the term or modifying or enlarging conditions, or revoke
probation and resentence the defendant. 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 three conditions
of her probation. The defendant violated the conditions that she not
leave this judicial district without permission, report to the Probation
Office as instructed, and notify the Probation Office of any change ...