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United States v. Wood

United States District Court, S.D. Georgia, Waycross Division

April 20, 2017

UNITED STATES OF AMERICA,
v.
BARNEY CLINTON WOOD,

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the United States Probation Office's (“USPO”) Petition for Revocation of Defendant's term of supervised release. (Doc. 24.) For the reasons and in the manner set forth below, I hereby VACATE the March 15, 2017, Order and Report and Recommendation and enter the following in its stead.

         The Court conducted a preliminary hearing on February 16, 2017. (Doc. 31.) The Honorable William T. Moore, Jr., referred this matter for recommended disposition, pursuant to 18 U.S.C. § 3401(i), and the Court conducted revocation proceedings on March 13, 2017. Following that hearing, I issued a Report on March 15, 2017, wherein I recommended the Court revoke Defendant's current term of supervised release, find by a preponderance of the evidence that Defendant committed Violation Number 2 of the USPO Petition, and dismiss Violations Numbered 1, 3, and 4 of the USPO Petition. I also recommended the Court sentence Defendant to serve a period of four (4) months' custodial imprisonment and thirty-two (32) months' supervised release, for a total sentence of thirty-six (36) months, and recommended the imposition of additional terms on this period of supervised release. I also recommended Defendant receive credit against any sentence imposed for time served pursuant to his arrest on the USPO's Petition, to begin on the date of his arrest on January 10, 2017, and ending on the date of final disposition of this Report and Recommendation. 18 U.S.C. § 3585(b). I further recommended that, to the extent those recommendations were adopted and to the extent practicable, the Bureau of Prisons designate Defendant's place of incarceration to be in the vicinity of Waycross, Georgia. (Doc. 34, pp. 1-2, 6-8.) Neither Defendant nor the Government filed objections to the Report and Recommendation.

         However, a review of the record and proceedings in this case revealed that Defendant had not been provided with the opportunity to address the Court prior to the recommended imposition of sentence. Thus, the Court scheduled an allocution hearing in this case, and, on April 18, 2017, Defendant, his counsel, Assistant United States Attorney (“AUSA”) Carlton Bourne, and United States Probation Officer Tim Williams appeared before the Court. The Court presented Defendant with the opportunity to directly address the Court prior to any final recommendations in this case. At that time, Defendant addressed the Court and requested he be allowed to access the Internet during his supervised release term for the limited purposes of completing training for a job he had taken to supplement his income and for the sale of the products associated with this job. Officer Williams lodged objections to this request and cited the difficulty the USPO would have in monitoring Defendant's Internet access, even on a limited basis, if the Court were to grant Defendant's request. In considering this request, the Court noted Defendant's problems associated with the Internet in the past and Officer Williams' concerns regarding the inability to monitor Defendant's internet usage. The Court concluded it would not be in the public or Defendant's best interests if he were granted any access to the Internet while on supervised release. The Court repeatedly provided Defendant with an opportunity to further address the Court to provide any information, including any information in mitigation of the sentence.

         After review of the record and consideration of the evidence, testimony, the parties' stipulation, and Defendant's request voiced at the allocution hearing, I RECOMMEND the Court REVOKE Defendant's current term of supervised release, FIND by a preponderance of the evidence that Defendant committed Violation Number 2 of the USPO Petition, and DISMISS Violations Numbered 1, 3, and 4 of the USPO Petition. I also RECOMMEND the Court sentence Defendant to serve a period of four (4) months' custodial imprisonment and thirty-two (32) months' supervised release, for a total sentence of thirty-six (36) months, and impose additional terms on this period of supervised release, as set forth herein. I also RECOMMEND Defendant receive credit against any sentence imposed for time served pursuant to his arrest on the USPO's Petition, to begin on the date of his arrest on January 10, 2017, and ending on the date of final disposition of this Report and Recommendation. 18 U.S.C. § 3585(b). I further RECOMMEND that, to the extent this Recommendation is adopted and to the extent practicable, the Bureau of Prisons designate Defendant's place of incarceration to be in the vicinity of Waycross, Georgia.[1]

         BACKGROUND

         On October 10, 2003, the United States of America indicted Defendant for: production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4); receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). (Doc. 1.) Defendant pled guilty to the receipt of child pornography charge, and Judge Moore sentenced Defendant to 135 months' imprisonment. Judge Moore adjusted Defendant's sentence to 109 months' and 21 days' imprisonment based on Defendant's period of incarceration he had already served on state charges that would not be credited against his federal sentence. Defendant's federal sentence was to run concurrently with the remaining portion of his state sentence. (Doc. 23, p. 2.) Judge Moore imposed a term of three years' supervised release. (Id. at p. 3.)

         The USPO began supervision of Defendant on February 3, 2016. (Doc. 24, p. 1.) On December 15, 2016, the USPO submitted a Petition for Warrant of Summons for Offender Under Supervision and alleged Defendant had violated certain special conditions of his supervised release. Specifically, the USPO asserted Defendant disclosed during a polygraph examination conducted on November 30, 2016, that he: had been alone and unsupervised around minors when he was in the restroom of his church; visited and loitered in places where he would likely have unsupervised contact with minors, such as the mall and mall food court; searched the Internet for playgrounds, public swimming pools, and parks near his home; accessed computers at the public library and at a friend's house without permission to do so from his Probation Officer; had queried the Internet using search terms which yielded results for children and adults in the nude; and communicated with a minor via a cellular telephone and text messaging without permission of his Probation Officer. (Id. at pp. 1-2.) The Court issued a warrant for Defendant's arrest on January 4, 2017. (Id. at p. 3; Doc. 25.)

         The United States Marshals Service arrested Defendant on January 10, 2017. (Doc. 26.) Defendant appeared before United States Magistrate Judge Charles Weigle in the Middle District of Georgia for his initial appearance on the probation revocation charges on the same date as his arrest, and Defendant's revocation proceedings were removed to this Court, which is the district of his conviction. (Doc. 27.) This Court conducted a preliminary revocation hearing on February 16, 2017, at which David Simmons and Todd Garrett, both of whom are with the USPO in Macon, Georgia, appeared and testified. Officer Simmons testified that random searches of Defendant's laptop, iPad, and smart phones were conducted on October 17, 2016, as a condition of Defendant's supervised release, which revealed search terms and images expressly forbidden by the terms of Defendant's supervised release. The officers testified that Defendant admitted to accessing the Internet without permission at the public library and at a friend's house. After hearing from the Government and Defendant's counsel, the Court found probable cause existed to believe Defendant had violated the conditions of his supervised release and directed that the case proceed to a final revocation proceeding. The Court conducted a revocation proceeding on March 13, 2017.

         At that revocation proceeding, AUSA Scarlett Nokes announced that the Government and Defendant reached an agreement whereby Defendant would stipulate to having committed Violation Number 2 of the USPO's Petition (use of computer without permission), and the Government would move to dismiss Violations Numbered 1, 3, and 4 of the Petition. AUSA Nokes recommended Defendant be sentenced to five (5) months' imprisonment, with credit for time served since Defendant's arrest on January 10, 2017, and twenty-four (24) months' supervised release to follow this term of imprisonment. Defendant's counsel, Sean Simmons, informed the Court that AUSA Nokes' presentation of the parties' agreement was accurate. The Court reminded Defendant of his rights and whether he understood and was willing to waive those rights through this agreement. Defendant stated he understood his rights and wished to waive those rights, that he had discussed this matter with his attorney, that he was satisfied with his attorney's representation, and that no one had coerced or pressured him to enter into this agreement with the Government. Defendant did not object to the Government presenting evidence of a factual basis for the stipulation by proffer.

         AUSA Nokes proffered that Mr. Peel, a polygrapher, who was present at the hearing, would testify to Defendant having admitted during the polygraph examination on November 30, 2016, that he used a computer at the library and at his friend's house to access the Internet without permission. The Court inquired of Defendant whether the Government would be able to prove its proffer, whether he understood the Government's recommendation as to sentencing was only a recommendation to the Court, and whether he was still willing to stipulate to having committed Violation Number 2. Defendant answered each question in the affirmative.

         The Court found Defendant was aware of his rights and had been assisted by able counsel. The Court also found that there was sufficient factual support to find that Defendant had committed Violation Number 2, such as the evidence presented during the preliminary hearing, the Government's proffer, and Defendant's stipulation. In addition, the Court found good cause to recommend the dismissal of Violations Numbered 1, 3, and 4 pursuant to the Government's motion and Defendant's stipulation. AUSA Nokes noted the United States Sentencing Guidelines' range called for three to nine months' imprisonment, and the Government recommended the Court sentence Defendant to five (5) months' imprisonment, to be followed by twenty-four (24) months' supervised release. Defendants requested he be allowed to serve his sentence on home confinement or, in the alternative, at the Federal Correctional Institution in Jesup, Georgia.

         As noted above, a review of the record revealed that the Court had not provided Defendant the opportunity to directly address the Court. Thus, the Court conducted the allocution proceeding on April 18, 2017, at which time ...


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