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United States v. Rosetto

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

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN ROSETTO, 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 William T. Lawrence, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision (“Petition”) filed on March 28, 2018, and a supplemental petition filed on May 4, 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 May 10, 2018, and May 17, 2018, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On May 10 and May 17, 2018, defendant John Rosetto appeared in person with his appointed counsel, William Dazey. The government appeared by Jeffrey Preston and Pamela Domash, Assistant United States Attorneys. The United States Probation Office (“USPO”) appeared by Officer Mark McCleese, 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. Rosetto 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. Rosetto 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. Rosetto and his counsel, who informed the court they had reviewed the Petition and that Mr. Rosetto understood the violations alleged. Mr. Rosetto waived further reading of the Petition.

3. The court advised Mr. Rosetto 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. Rosetto was advised of the rights he would have at a preliminary hearing. Mr. Rosetto stated that he wished to waive his right to a preliminary hearing.

4. The court advised Mr. Rosetto 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.

5. Mr. Rosetto, by counsel, stipulated that he committed Violation Numbers 1, 2, 3, 4, 5, and 6 set forth in the Petition as follows:

Violation Number

Nature of Noncompliance

1

You shall report to the probation officer in a manner and frequency directed by the Court or probation officer.”

Mr. Rosetto failed to report to the probation office on March 22 and March 26, 2018. Appointment notices were mailed and left at his address instructing him to report on the aforementioned dated.

2

You shall reside at a location approved by the probation officer and shall notify the probation officer at least 72 hours prior to any planned change in place or circumstances of residence or employment (including, but not limited to, changes in who lives there, job positions, job responsibilities). When prior notification is not possible, you shall notify the probation officer within 72 hours of change.”

Multiple attempts have been made to contact the offender at his residence. On March 26, 2018, the occupant and former girlfriend of offender communicated that Mr. Rosetto no longer lived at that location.

3

You shall maintain lawful employment, unless excused by the probation officer for schooling, vocational training, or other reasons that prevent lawful employment.”

Since beginning supervision, the offender has failed to obtain full-time employment. He reported working part-time laying carpet for an individual he knew as Tommy, but he did not know Tommy's last name. He was unable to provide proof of employment or this employer's contact information.

4

You shall participate in a substance abuse or alcohol treatment program approved by the probation officer and abide by the rules and regulations of that program. The probation officer shall supervise your participation in the program (provider, location, modality, duration, intensity, etc.) The court authorizes the release of the presentence report and available evaluations to the treatment provider, as approved by the probation officer.”

Since being referred to substance abuse treatment on January 24, 2018, the offender failed to attend group treatment on February 28 and March 24, 2018. Additionally he failed to report for a random urinalysis on March 5, 2018.

5

You shall not use or possess any controlled substances prohibited by applicable state or federal law, unless authorized to do so by a valid prescription from a licensed medical provider. You shall follow the prescription instructions regarding frequency and dosage.”

Mr. Rosetto tested positive for amphetamines on January 8, January 16, February 12, and March 6, 2018.

6

You shall not use or possess any controlled substances prohibited by applicable state or federal law, unless authorized to do so by a valid prescription from a licensed medical provider. You shall follow the prescription instructions regarding frequency and dosage.”

Mr. Rosetto tested positive for amphetamines on March 17, 2018.

         6. The government moved to dismiss violation 7 and the same was granted.

         7. After ensuring that Mr. Rosetto's decision to waive hearing and admit the violations, the court placed Mr. Rosetto under oath and directly inquired of Mr. Rosetto whether he admitted violations 1, 2, 3, 4, 5, and 6 of his supervised release set forth above. Mr. Rosetto admitted the violations as set forth above.

         9. The parties and the USPO further stipulated that:

(a) The highest grade of Violation (Violations 5 and 6) is a Grade B violation (U.S.S.G. § 7B1.1(a)(2)).
(b) Mr. Rosetto's criminal history category is III.
(c) The range of imprisonment applicable upon revocation of Mr. Rosetto's supervised release, therefore, is 8 to 14 months' imprisonment. (See U.S.S.G. § 7B1.4(a).)

         10. The parties jointly recommended a sentence of five (5) months in the Bureau of Prisons with 24 months of supervised release to follow. Defendant requested a recommendation of placement at FCI McDowell.

         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, JOHN ROSETTO, violated the above-specified conditions in the Petition and that his supervised release should be and therefore is REVOKED, and he is sentenced to the custody of the Attorney General or his designee for a period of five (5) months with twenty-four (24) months of supervised release to follow. In addition to the mandatory conditions of supervision, the following conditions of supervised release will be imposed:

1. You shall report to the probation office in the district to which you are released within 72 hours of release from the custody of the Bureau of Prisons. Justification: This condition ...

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