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United States v. Sander

United States District Court, S.D. Indiana, Indianapolis Division

January 29, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
LORNA K. SANDER, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

DEBRA McVICKER LYNCH, Magistrate Judge.

This matter is before the undersigned according to the Order entered by the Honorable Sarah Evans Barker, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision ("Petition") filed on December 31, 2013, and to submit proposed Findings of Facts and Recommendations for disposition under 18 U.S.C. §§ 3401(i) and 3583(e). Proceedings were held on January 23, 2014, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure. [1]

On January 23, 2014, defendant Lorna Sander appeared in person with her appointed counsel, Mike Donahoe. The government appeared by Sharon Jackson, Assistant United States Attorney. The United States Probation Office ("USPO") appeared by Officer Shelly McKee, who participated in the proceedings.

The court conducted the following procedures in accordance with Federal Rule of Criminal Procedure 32.1(a)(1) and 18 U.S.C. § 3583:

1. The court advised Ms. Sander of her right to remain silent, her right to counsel, and her right to be advised of the charges against her. The court asked Ms. Sander questions to ensure that she had the ability to understand the proceedings and her rights.

2. A copy of the Petition was provided to Ms. Sander and her counsel, who informed the court they had reviewed the Petition and that Ms. Sander understood the violations alleged. Ms. Sander waived further reading of the Petition.

3. The court advised Ms. Sander of her right to a preliminary hearing and its purpose in regard to the alleged violations of her supervised release specified in the Petition. Ms. Sander was advised of the rights she would have at a preliminary hearing. Ms. Sander stated that she wished to waive her right to a preliminary hearing.

4. Ms. Sander stipulated that there is a basis in fact to hold her on the specifications of violations of supervised release as set forth in the Petition. Ms. Sander executed a written waiver of the preliminary hearing, which the court accepted.

5. The court advised Ms. Sander of her right to a hearing on the Petition and of her rights in connection with a hearing. The court specifically advised her that at a hearing, she would have the right to present evidence, to cross-examine any witnesses presented by the United States, and to question witnesses against her unless the court determined that the interests of justice did not require a witness to appear.

6. Ms. Sander, by counsel, stipulated that she committed Violation Numbers 1, 2, 3 (in part), 4, 5, 6, 7 and 8 set forth in the Petition as follows:

7. Ms. Sander confirmed that she made the voluntary decision to waive her right to a hearing on the allegations of the Petition and that no promise was made to her regarding the magistrate judge's recommended disposition of the Petition. The court placed Ms. Sander under oath and directly inquired of whether she admitted violations 1, 2, 3, 4, 5, 6, 7, and 8 of her supervised release set forth above. Ms. Sander admitted the violations as set forth above. Although she further qualified or explained the facts underlying violations 1 through 5, the court finds that she in substance admitted violation of the above-specified conditions of supervised release.

8. The parties and the USPO further stipulated that:
(a) The highest grade of Violation (Violation 1) is a Grade B violation (U.S.S.G. § 7B1.1(a)(2)).
(b) Ms. Sander's criminal history category is 1.
(c) The range of imprisonment applicable upon revocation of Ms. Sander's supervised release, therefore, is 4-10 months' imprisonment. ( See U.S.S.G. § 7B1.4(a).)

9. The parties agreed on the appropriate disposition of the Petition to recommend to the court as follows: (a) the defendant's supervised release is to be revoked; (b) the defendant will be sentenced to the Bureau of Prisons for a period of six (6) months, with a recommendation that she be placed at the Volunteers of America, with no supervised release to follow. Ms. Sander further requested that she be permitted to self-surrender upon assignment by Bureau of Prisons; the government sought an order that Ms. Sander be taken into custody immediately. The parties presented argument on this issue.

The court, having heard the admissions of the defendant, the stipulations of the parties, and the arguments and position of each party and the USPO, NOW FINDS that the defendant, LORNA K. SANDER, violated the above-specified conditions in the Petition and that her supervised release should be and therefore is REVOKED, and she is sentenced to the custody of the Attorney General or his designee for a period of six (6) months, with the recommendation to be placed at the Volunteers of America, with no supervised release to follow. The court further orders that Ms. Sander is to remain on current conditions of supervised release pending the district court's action on this Report and Recommendation and that she is to self-surrender upon assignment by the Bureau of Prisons.

Counsel for the parties and Ms. Sander stipulated in open court waiver of the following:

1. Notice of the filing of the Magistrate Judge=s Report and Recommendation;
2. Objection to the Report and Recommendation of the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636(b)(1)(B); Rule 72(b), Federal Rules of Civil Procedure , and S.D.Ind.L.R.72.1(d)(2), Local Rules of the U.S. District Court for the Southern District of Indiana.

Counsel for the parties and Ms. Sander entered the above stipulations and waivers after being notified by the undersigned Magistrate Judge that the District Court may refuse to accept the stipulations and waivers and conduct a revocation hearing pursuant to Title 18 U.S.C. § 3561 et seq. and Rule 32.1 of the Federal Rules of Criminal Procedure and may reconsider the Magistrate Judge=s Report and Recommendation, including making a de novo determination of any portion of the Report or specified proposed findings or recommendation upon which she may reconsider.

WHEREFORE, the magistrate judge RECOMMENDS the court adopt the above recommendation revoking Ms. Sander's supervised release, imposing a sentence of imprisonment of six (6) months in the custody of the Attorney General or his designee with no supervised release to follow, with the recommendation that she be placed at the Volunteers of America, and ordering that Ms. Sander self-surrender upon assignment by the Federal Bureau of Prisons.

IT IS SO RECOMMENDED.


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