reading. The undersigned then explained to Defendant the statutory maximum terms of
incarceration and supervised release as well as the sentencing options available to the Court.
Defendant acknowledged his understanding and entered a plea of true to the allegations contained
in Section I.B(2) above, specifically: the Mandatory Condition that Defendant not illegally possess
a controlled substance; the Mandatory Condition that defendant refrain from any unlawful use of
a controlled substance, submit to one drug test within 15 days of release from imprisonment and
at least two periodic drug tests thereafter, as determined by the court; Standard Condition No. 7;
and Special Condition No. 1.

Defendant consented orally and in writing to allocution before the magistrate judge (Doc.
651), but declined to make any statement. Defense Counsel stated that Defendant served twelve
years and five months on his original sentence, and was two months short of completing his term
of supervised release when arrested. He relayed that Defendant has entered drug treatment four
times, as well as Alcoholics Anonymous, and has taken affirmative action to overcome his drug
and alcohol problems. Counsel also stated that Defendant worked full time while on release, and
was a productive citizen. His daughter and ex-wife were in attendance at the hearing in support of
Defendant.

The attorney for the government declined to comment.

Il. FINDINGS OF THE COURT

i. The Defendant pled true to the allegations that he violated conditions of his
supervised release as contained in the Government’s Motion to Revoke, and set
forth in Section I.B(2) above, specifically: the Mandatory Condition that
Defendant not illegally possess a controlled substance; the Mandatory Condition
that defendant refrain from any unlawful use of a controlled substance, submit to
one drug test within 15 days of release from imprisonment and at least two
periodic drug tests thereafter, as determined by the court; Standard Condition No.
7; and Special Condition No. 1.

5



iii, that he be SENTENCED to the custody of the Attorney General for a period of nine (9)
months, with credit while in federal detention beginning July 31, 2017, and

iv. that no additional term of supervised release be imposed. However, should the Court
wish to reimpose a term of supervised release, the maximum term which could be imposed would
be at least 3 years and up to life, minus any imposed custodial sentence in this revocation
proceeding. Pursuant to 18 USC § 3583(h) and the policy statements outlined in
USSG § 7B1.3(g)(2), a term of at least 27 months would satisfy the mandatory minimum
requirement. Should the district judge impose an additional term of supervised release, the

conditions imposed on the original Judgment dated May 31, 2002, are recommended.

NOTICE OF OPPORTUNITY TO FILE OBJECTIONS TO
REPORT AND RECOMMENDATION

A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to any part of this report and recommendation must file
specific written objections within 14 days after being served with a copy. See 28 U.S.C.
§ 636(b)(1). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and specify the place
in the magistrate judge's report and recommendation where the disputed determination is found.
An objection that merely incorporates by reference or refers to the briefing before the magistrate
judge is not specific. Failure to file specific written objections will bar the aggrieved party from
appealing the factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs.

Automobile Ass'n, 79 F.3d 1415, 1417 (Sth Cir. 1996).

10



of the defendant, see 18 U.S.C. § 3553(a)(2)(C); and to provide the defendant with
needed educational or vocational training, medical care, or other corrective
treatment in the most effective manner, see 18 U.S.C. § 3553(a)(2)(D);

iii. The kinds of sentence and the applicable sentencing range established in the United
States Sentencing Commission’s Sentencing Guidelines pursuant to section
994(a)(3) of title 28, United States Code, any amendments thereto, and any
associated policy statements made by act of Congress or issued by the Sentencing
Commission, see 18 U.S.C. § 3553(a)(4)(B);

iv. The need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct, see 18 U.S.C. § 3553(a)(6);
and

v. The need to provide restitution to any victims of the offense, see 18 U.S.C. §
3553(a)(7).

The undersigned has carefully considered the factors listed in 18 U.S.C. §§ 3583(e) and

3553(a) as applied to this defendant.

B. STATUTORY AND GUIDELINE PROVISIONS

The classification of Defendant’s underlying criminal offense results in a two-year (2)
statutory maximum term of incarceration upon revocation of supervised release. See 18 U.S.C. §
3583(e)(3). United States Sentencing Guideline 7B1.4(a) suggests a revocation range of six (6) to
twelve (12) months imprisonment, based upon Defendant’s criminal history category of IV and
the admitted Grade C violations. Revocation of supervised release and a term of imprisonment not
to exceed the maximum provided in 18 U.S.C. § 3583(e)(3) is mandatory, given Defendant’s

admitted violations of using and possessing a controlled substance. See 18 U.S.C. § 3583(g)(1).3

> Pursuant to U.S. v. Miller, 634 F.3d 841 (5" Cir, 2011), the Court may not consider the factors listed in
18 U.S.C. § 3553(a)(2)(A), which include “the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense,” when revoking a term of supervised release. Further, the
sentencing court may not impose or lengthen a prison term in order to foster a defendant’s rehabilitation.
US. v. Tapia, 131 S.Ct. 2382 (2011).
° See, however, the exception contained in § 3583(d): “The court shall consider whether the availability
of appropriate substance abuse treatment programs, or an individual’s current or past participation in such
programs, warrants an exception in accordance with United States Sentencing guidelines from the rule of
7



ii.

iii.

iv.

vi.

vii.

viii.

The Defendant was competent to make the decision to plead true to the allegations;

The Defendant had both a factual and rational understanding of the proceedings
against him;

The Defendant did not suffer from any physical or mental impairment that would
affect his ability to fully understand the charges against him or the consequences of
his plea;

The Defendant was sane and mentally competent to stand trial for these proceedings
and to assist his attorney in the preparation and conduct of his defense;

The Defendant received a copy of the Government’s Motion to Revoke, either read
or had it read to him, had adequate opportunity to discuss the charges against him
with his attorney, and ultimately understood the charges alleged against him;

A preliminary revocation hearing was waived and probable cause as to the alleged
violations was found;

At the final revocation hearing, Defendant understood all of his statutory and
constitutional rights, yet freely, intelligently, and voluntarily waived same and pled
true to the allegations listed in subsection I.B(2) above; and

The Defendant violated conditions of his supervised release.

Il. SENTENCING

A.

FACTORS

The Court may revoke a term of supervised release after finding that a defendant has

violated a condition of supervised release. See 18 U.S.C. § 3583(e)(3). Upon revocation, a court

should impose a sentence that is sufficient, but not greater than necessary to comply with the

purposes set forth in 18 U.S.C. § 3553(a). See § 3583(c). The sentencing court is to consider:

i.

ii.

The nature and circumstance of the offense and the history and characteristics of
the defendant, see 18 U.S.C. § 3553(a)(1);

The need for the sentence imposed to afford adequate deterrence to criminal
conduct, see 18 U.S.C. § 3553(a)(2)(B); to protect the public from further crimes

6



Defendant admittedly struggled to remain sober and requested more intensive treatment.
The Court allowed him an opportunity to complete an inpatient drug treatment program. In early
January 2017, Defendant entered into a 45-day inpatient drug treatment program conducted by the
United States Veteran's Affairs (VA). In mid-February, he completed the residential program and
returned to ARC for outpatient treatment services.

Defendant was set to discharge his term of supervision in November 2017. However,
during this period of supervision, he has reverted to the use of illegal substances on multiple
occasions. The U.S. Probation Office has referred Defendant to drug aftercare services on multiple
occasions in efforts to help him obtain sobriety. As it appeared outpatient services were not
sufficient, Defendant requested, and was granted permission by the Court, to enter an in-patient
treatment program. Despite these multiple opportunities to correct his behavior, he has failed to

take advantage and change his behavior.

Vv. CONCLUSION
Upon consideration of the foregoing, the magistrate judge RECOMMENDS:

i. that Defendant be found to have violated the conditions of his supervised release as set
forth in Section I.B(2) above, specifically: the Mandatory Condition that Defendant not illegally
possess a controlled substance; the Mandatory Condition that defendant refrain from any unlawful
use of a controlled substance, submit to one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter, as determined by the court; Standard Condition No.
7; and Special Condition No. 1;

ii. that his supervised release be REVOKED;



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS 2QITAUG 29° PH 3: if

ABILENE DIVISION
UNITED STATES OF AMERICA § DEPUTY ven A
§
§
v § CASE NO: 1:02-CR-0005-O-BL
§
§
ROBERT DELGADO, JR. §

REPORT AND RECOMMENDATION
AS TO REVOCATION OF SUPERVISED RELEASE

The magistrate judge submits this Report and Recommendation to the United States district
judge pursuant to 28 U.S.C. §636(b) and the referral Order dated August 15, 2017 (Doc. 647),

addressing the motion to revoke ROBERT DELGADO, JR.’s term of supervised release.

lL PROCEDURAL BACKGROUND

A. Original Conviction

On March 14, 2002, Robert Delgado, Jr. (hereafter “Defendant”) entered a plea of guilty
to Count Twenty-Four of a superseding indictment arising out of the Northern District of Texas,
charging Distribution and Possession with Intent to Distribute Less Than 500 Grams of a Mixture
and Substance Containing Cocaine and Aiding and Abetting, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(c), and 18 U.S.C. § 2. (Doc. 631 and Judgment, Presentence Report). On May
31, 2002, Defendant was sentenced by United States District Judge Sam R. Cummings, Northern
District of Texas, to a one hundred eighty-eight (188) month term of incarceration, to be followed
by a 3-year term of supervised release. (/d.) On January 1, 2015, jurisdiction was transferred to

Chief United States District Jorge A. Solis, and on March 16, 2016, to United States District Judge



SIGNED this 29th day of August 2017.

LOT PLT

E, SCOTT FROST
UNITED STATES MAGISTRATE JUDGE

11



Defendant may also be placed back on supervised release following any term of
imprisonment imposed upon revocation. The maximum term of supervised release must not exceed
the term of supervised release authorized by statute for the offense that resulted in the original term
of supervised release, less any term of imprisonment imposed upon revocation. See 18 U.S.C. §
3583(h); see also U.S. v. Jackson, 559 F.3d 368 (5" Cir. 2009). Accordingly, Defendant is subject
to a maximum term of supervised release of at least three (3) years and up to life, less any term of

imprisonment imposed upon revocation of his current term of supervised release.

IV. ANALYSIS! AND JUSTIFICATION

In November 2014, Defendant began serving his term of supervised release in the Northern
District of Texas, Abilene Division. Upon commencing his term of supervision, Defendant resided
with his mother in Big Spring, Texas, until later obtaining a personal residence. During this period
of supervision, he continued to reside in Big Spring, Texas, at various locations within the city.
Defendant has also maintained employment with B&M Fencing. He has struggled with various
diabetic and cardiovascular related issues.

Upon releasing from custody, Defendant was referred to CC and was discharged from the
program. Shortly after completing counseling services, he tested positive for alcohol, and was
placed back into treatment. In March 2016, Defendant was again released from treatment services,

but later referred back in October 2016 due to additional relapse issues.

section 3583(g) when considering any action against a defendant who fails a drug test.” The undersigned
has carefully considered the factors listed in 18 U.S.C. §§ 3583(d). Although Defendant failed drug tests,
the violations forming the basis for this action rest upon Defendant admittedly using and possessing
controlled substances, as confirmed by the drug testing results.

* Information in this section is taken from the Personal History section of the Supervised Release Violation Report.
8



Delgado violated these conditions of supervised release by using and possessing alcohol in April
2015. On April 29, 2015, Delgado submitted a urine specimen to Cantu Counseling (CC), a
federally contracted drug treatment provider, in Big Spring, Texas, that tested positive for
alcohol. Subsequently, on June 19, 2015, Delgado admitted, verbally and in writing, to U.S.
Probation Officer Scott Cannon (USPO Cannon) that he consumed alcohol on April 29, 2015.

Delgado further violated these terms of supervised release by using and possessing cocaine in
September, November, and December 2016 and June and July 2017. On September 14, 2016,
Delgado submitted a urine specimen to USPO Cannon, which tested positive for cocaine. On
October 6, 2016, Delgado verbally admitted to the use of cocaine and later on October 11, 2016,
Delgado reported to the U.S. Probation and Pretrial Services Office in Abilene, Texas, and
admitted in writing to USPO Cannon that he used cocaine twice on or about September 14, 2016.

Later, on November 30, 2016, Delgado submitted a urine specimen at Alpha Recovery Center
(ARC), a federally contracted drug treatment provider, in Big Spring, Texas, that again tested
positive for cocaine. On December 13, 2016, Delgado admitted verbally to USPO Cannon that
he consumed alcohol and cocaine. Subsequently, on December 14, 2016, Delgado reported, in
person, to the U.S. Probation and Pretrial Services Office in Abilene, Texas, and submitted a
urine specimen that tested positive for cocaine. Prior to submitting said specimen, Delgado
admitted, verbally and in writing, to using alcohol on November 27, 2016, and cocaine on or
about November 27, and December 11, 2016.
Further, on June 27, 2017, Delgado submitted a urine specimen at ARC that tested positive for
cocaine. On July 10, 2017, Delgado admitted verbally and in writing to USPO Cannon that he
consumed cocaine on June 24 and July 7, 2017.

3) Revocation Hearing

A Final Hearing on the Motion to Revoke Supervised Release was held on August 29,
2017, before the magistrate judge. Defendant was represented by Curtis Tomme; the United States
was represented by Assistant United States Attorney Juanita Fielden. The proceedings were
electronically recorded.

Upon call of the matter, Defendant was placed under oath and was determined to be
competent to enter a plea. The undersigned, having previously reviewed the allegations contained
in the Government’s Motion to Revoke with Defendant and his counsel in open court, inquired

whether Defendant understood the allegations, after which Defendant indicated that he had

discussed the allegations with his attorney, did understand the allegations, and waived a subsequent

4



Previous Court Notifications

On January 17, 2017, a Probation Form 12A (PF12A) was submitted to the Court to address
multiple violations related to Robert Delgado, Jr., (Delgado) reverting to the use of alcohol and
cocaine. At the time of the submission of the PF12A, Delgado was subject to mandatory revocation
pursuant to provisions of 18 U.S.C. § 3583(g)(1). However, Delgado requested additional
treatment services and had enrolled himself into an inpatient substance abuse treatment center at
the United States Veteran's Hospital in Big Spring, Texas. On January 31, 2017, the Court agreed
to exempt Delgado from the mandatory revocation statue and allow him to complete drug
treatment services. The previous violations are included below.
I

Violation of Mandatory Condition

The defendant shall not illegally possess a controlled substance.

Violation of Mandatory Condition

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall
submit to one drug test within 15 days of release from imprisonment and at least two periodic
drug tests thereafter, as directed by the probation officer.

Violation of Standard Condition No. 7

The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use,
distribute, or administer any controlled substance or any paraphernalia related to any controlled
substances, except as prescribed by a physician.

Violation of Special Condition No. 1

The defendant shall participate in a program approved by the U.S. Probation Office for treatment
of narcotic or drug or alcohol dependency which will include testing for the detection of
substance use or abuse. The defendant shall abstain from the use of alcohol and/or all other
intoxicants during and after completion of treatment. It is ordered that the defendant contribute to
the costs of services rendered (co-payment) at a rate of at least $5 per month.

Nature of Noncompliance



Reed C. O’Connor, Northern District of Texas. (/d.). Supervision commenced on November 7,
2014. (Id)

On July 21, 2017, a Petition for Offender under Supervision was filed by the United States
Probation Office (Doc. 632), requesting a violator’s warrant for Defendant’s arrest after violation
of the conditions discussed below. The district judge ordered the issuance of a warrant on July 22,
2017. (Id).

B. Current Revocation Proceedings
1) Procedural History

Before the Court is the Government’s Motion to Revoke Supervised Release dated August
2, 2017 (Doc. 635), requesting revocation of Defendant’s term of supervised release and that
Defendant be ordered to serve a sentence as determined by the Court. This Motion followed the
Petition of the United States Probation Office, (Doc. 632), referenced above.

Following Defendant’s arrest, he appeared before a magistrate judge on August 8, 2017,
for an initial appearance (Doc. 642). A detention hearing and preliminary revocation hearing were
scheduled for the same date, but vacated by the filing of written waivers. (Docs. 640, 641).
Probable cause was found and an order of detention entered on August 8, 2017. (Doc. 643.).

2) Violation Allegations
As indicated above, a violator’s warrant was issued and Defendant was arrested for

allegedly violating terms of his supervised release, specifically':

' Alleged violations taken from Petition for Offender under Supervision dated July 21, 2017.
2