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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA,

v.

(1) GREGORY JAMES,

Defendant

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No. 1:20-CR-00081-LY

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

The undersigned submits this Report and Recommendation to the District 

Court pursuant to 28 U.S.C. § 636(b), 18 U.S.C. § 3401(i), and Rule 1(d) of Appendix 

C of the Local Court Rules of the United States District Court for the Western District 

of Texas, Local Rules for the Assignment of Duties to United States Magistrate 

Judges.

I. BACKGROUND

Defendant Gregory James pleaded guilty to Count 2 of his indictment, which

charged him with possession with intent to distribute synthetic cannabinoids, in 

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Dkt. 70. The District Court sentenced 

James to serve six months of imprisonment, followed by five years of supervised 

release. Id.

James is before the Court pursuant to the U.S. Probation Office’s Petition for 

Warrant or Summons for Offender Under Supervision, which alleges violations of the 

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terms of his supervised release. Dkt. 74. In particular, the petition alleges violations 

of Mandatory Condition 1, which states that “[t]he defendant shall not commit 

another federal, state, or local crime during the term of supervision,” and Standard 

Condition 2, which requires James to report to his probation officer as instructed. Id.

The petition states that in September 2022, James violated the condition that he not 

commit another crime when he allegedly brandished a firearm during a confrontation

with his girlfriend’s husband. The petition further states that in connection with this 

incident, James was charged in Travis County, Texas with Aggravated Assault with 

a Deadly Weapon, Cause No. D-1-DC-22-302664, and that a warrant has been issued 

for his arrest. As for the condition requiring James to report to his probation officer, 

the petition states that the last contact James has had with the probation office was 

in early October 2022 and that the USPO considers him to have absconded 

supervision. Id. In response to the petition, the undersigned signed a warrant for 

James’s arrest. Dkt. 75 (signed January 5, 2023). James was arrested on January 18, 

2023, and has remained in the custody of the United States Marshals Service since 

that time.

The undersigned held a preliminary and final revocation hearing on the 

petition on February 3, 2023. Present at the hearing were James, represented by 

Amber Vazquez; Assistant United States Attorney Matthew Harding; and James’s 

probation officer, Miguel Rodriguez. At the hearing, the parties announced their 

intent to proceed only with respect to the petition’s allegation of a violation of 

Standard Condition 2 and to defer moving forward with the alleged violation of 

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Mandatory Condition 1 until the underlying state charge is resolved. The 

undersigned accepted this agreement, and thus the hearing only addressed matters 

related to the violation of Standard Condition 2, i.e., the allegation that James 

absconded from supervision. During the hearing James waived his right to be present 

before the United States District Judge at the time of imposition of sentence, 

consented to allocution before the United States Magistrate Judge, and then pleaded 

“True” to the violation of Standard Condition 2.

II. FINDINGS OF THE COURT

Probable cause exists for the alleged violation of Standard Condition 2.

The most serious violation is a Grade C, and the defendant’s criminal 

history category is VI.

The defendant understood the petition and the charges alleged against 

the defendant and had the opportunity to discuss the petition and 

charges with the defendant’s attorney.

The defendant freely, intelligently, and voluntarily pleaded true to the 

charge, or charges, in the petition.

The defendant did not suffer from any physical or mental impairment 

that would affect the defendant’s ability to fully understand the charges 

against the defendant or the consequences of the defendant’s plea.

The defendant was sane and mentally competent at the time of these 

proceedings.

The defendant was sane and mentally competent to assist the 

defendant’s attorney in the preparation and conduct of the defendant’s 

defense.

The defendant waived the defendant’s right to a preliminary hearing.

The defendant understood all of the defendant’s statutory and 

constitutional rights and desired to waive those rights.

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The defendant understood that the defendant had the right to present 

evidence and to cross-examine witnesses at the hearing.

The defendant violated Standard Condition 2 of his term of supervised 

release and that there is a factual basis in support of that finding.

III. FACTORS CONSIDERED

The Court has considered the factors set out in Title 18, United States Code § 

3583(e) which makes reference to most of the factors set out in Title 18, United States 

Code § 3553(a), specifically:

The nature and circumstances of the offense, § 3553 (a)(1);

The history and characteristics of the defendant, (a)(1);

To afford adequate deterrence to criminal conduct, (a)(2)(B);

To protect the public, (a)(2)(C);

To provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most 

effective manner, (a)(2)(D);

The kinds of sentence and the sentencing range recommended by the 

U.S. Sentencing Guidelines, policy statements and corresponding 

analysis, (a)(4) and (a)(5);

The need to avoid unwarranted sentence disparities among defendants 

with similar records who have been found responsible for similar 

conduct, (a)(6);

The need to provide restitution to any victims of the offense, (a)(7).

Note: the factors in § 3553(a)(2)(A), namely the seriousness of offense, respect 

for the law and just punishment, were not considered by the Court.

IV. RECOMMENDATION

The Magistrate Court has carefully considered the arguments of counsel, the 

evidence presented by the parties and has taken judicial notice of the original preCase 1:20-cr-00081-LY Document 87 Filed 02/03/23 Page 4 of 7
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sentence report, and the petition, the Adjustment Summary and the Violation 

Conduct Computation prepared by the United States Probation Office.

In light of the factors set forth above, the undersigned RECOMMENDS that 

James’s term of supervised release be CONTINUED and the USPO’s petition to 

revoke, Dkt. 74, be DENIED.

The undersigned RECOMMENDS that the District Court continue to impose 

the conditions of James’s supervised release as set forth in Dkt. 70.

Additionally, the undersigned RECOMMENDS that the District Court 

impose the following additional conditions, as recommended by the U.S. Probation 

Office:

As a result of the defendant’s current behavior, the defendant shall participate 

in a cognitive-behavioral treatment program and follow the rules and regulations of 

that program. The probation officer will supervise the defendant’s participation in 

the program (provider, location, modality, duration, intensity, etc.). Such programs 

may include group sessions led by a counselor or participation in a program 

administered by the probation office. The defendant shall pay for the costs of the 

program if financially able.

As a result of the defendant’s current behavior, the defendant shall participate 

in the Location Monitoring Program for a period of 45 days, which will include remote 

location monitoring using Active Global Positioning Satellite (GPS) tracking. You 

shall abide by the rules and regulations of the Participant Agreement Form. During 

this time, you will remain at your place of residence except for employment and other 

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activities approved in advance by your Probation Officer. You will maintain a 

telephone at your place of residence without “caller ID,” “call forwarding,” “call 

waiting,” “call back/call block,” a modem or a portable cordless telephone for the above 

period as directed by the Probation Officer. At the direction of the Probation Officer, 

you shall wear a transmitter and be required to carry a tracking device. You shall 

pay all or part of the costs of the program based on the ability to pay as directed by 

the Probation Officer. 

As a result of the defendant’s recent arrest, the defendant shall not 

communicate, or otherwise interact, with Joseph Botello, either directly or through 

someone else, without first obtaining the permission of the probation officer.

Finally, the undersigned RECOMMENDS that upon acceptance of this report 

and recommendation by the District Court that James be RELEASED from the

custody of the U.S. Marshals Service.

V. WARNINGS

In order to expedite the District Court’s consideration of this report and 

recommendation, the parties jointly tendered a waiver of the 14-day objection period 

to the undersigned’s report and recommendation. The undersigned, therefore, does 

not anticipate that objections will be filed. Nonetheless, out of an abundance of 

caution, the undersigned provides the parties with the following warning:

The parties may file objections to this Report and Recommendation. A party 

filing objections must specifically identify those findings or recommendations to 

which objections are being made. The District Court need not consider frivolous, 

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conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 

419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed 

findings and recommendations contained in this Report within fourteen days after 

the party is served with a copy of the Report shall bar that party from de novo review 

by the District Court of the proposed findings and recommendations in the Report 

and, except upon grounds of plain error, shall bar the party from appellate review of 

unobjected-to proposed factual findings and legal conclusions accepted by the District 

Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); 

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED February 3, 2023.

DUSTIN M. HOWELL

UNITED STATES MAGISTRATE JUDGE

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