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United States v. Lowe

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

March 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL S. LOWE, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Debra McVicker Lynch, United States Magistrate Judge

         This matter is before the undersigned according to the Order entered by the Honorable Tanya Walton Pratt, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision (“Petition”) filed on February 8, 2018 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 March 19, 2018, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On March 19, 2018, defendant Michael S. Lowe appeared in person with his appointed counsel, Gwendolyn Beitz. The government appeared by Steve DeBrota, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer James Thomas, 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 Mr. Lowe of his right to remain silent, his right to counsel, and his right to be advised of the charges against him. The court asked Mr. Lowe questions to ensure that he had the ability to understand the proceedings and his rights.

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

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

         4. Mr. Lowe stipulated that there is a basis in fact to hold him on the specifications of violations of supervised release as set forth in the Petition. Mr. Lowe waived the right to a preliminary hearing.

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

         6. Mr. Lowe, by counsel, stipulated that he committed Violation Number 2 (in part) which was set forth in the Petition as follows:

Violation Number

Nature of Noncompliance

2

The defendant shall not possess or use a computer, including any Internet-enable device, unless approved by the probation officer.”

The offender admitted to using a non-approved Internet-enabled streaming device to access adult and child pornography.

         7. After ensuring that Mr. Lowe was knowingly and voluntarily waiving his right to a hearing on the alleged violations, the Court placed Mr. Lowe under oath and directly inquired of Mr. Lowe whether he admitted violation 2 his supervised release set forth above. Mr. Lowe admitted violation 2 as set forth above to the extent he admitted he had used or possessed an Internet-enabled device without the approval of the probation officer.

         8. The government moved to dismiss violations 1 and 3 and the same granted.

         9. The parties and the USPO further stipulated that:

(a) The highest grade of Violation (Violation 2) is a Grade C violation (U.S.S.G. § 7B1.1(a)(2)).
(b) Mr. Lowe's criminal history category is I.
(c) The range of imprisonment applicable upon revocation of Mr. Coleman's supervised release, therefore, is 3 - 9 months' imprisonment. (S ...

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