U.S. v. Lopez

• Decision Date: 24 November 1997
• Docket Number: No. CR. 91-082L.,CR. 91-082L.
• Citation: 985 F.Supp. 59
• Parties: UNITED STATES of America v. Alexander V. LOPEZ.
• Court: U.S. District Court — District of Rhode Island

985 F.Supp. 59

UNITED STATES of America v. Alexander V. LOPEZ.

No. CR. 91-082L.

United States District Court, D. Rhode Island.

November 24, 1997.

Zecharia Chaffee, Asst. U.S. Atty., U.S. Attorney's Office, Providence, RI, for Plaintiff.

Douglas Rose, Woonsocket, RI, for Defendant.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

This case raises a novel issue concerning the effect of § 7B1.2(a) of the United States Sentencing Guidelines ("U.S.S.G.") on the disposition of defendant Alexander V. Lopez's ("defendant") violation of supervised release. The case is before the Court on defendant's Objection to a U.S. Magistrate Judge's Report & Recommendation. Defendant argues that the violation should be dismissed or, in the alternative, that his sentence for the violation should be made retroactively concurrent with his state court sentence for the offense constituting the violation or that his sentence for the violation should be suspended or reduced.

Specifically, defendant urges the Court to grant the requested relief because the United States Probation Office did not file its Petition for Warrant or Summons ("Petition") for defendant's violation of supervised release until approximately thirty-two months after he was convicted of the state offense which constituted the violation. Defendant argues that this delay violates U.S.S.G. § 7B1.2(a), as well as the Due Process Clause of the Fifth Amendment to the United States Constitution.

For the reasons that follow, defendant's objection is overruled and the Report and Recommendation is accepted and adopted.

I. Background

On May 22, 1992, a jury found defendant guilty of two counts of Possession of Cocaine with Intent to Distribute. On August 14, 1992, this Court sentenced him to federal prison for thirty-three months, to be followed by a term of supervised release of seventy-two months.¹ After serving his sentence, defendant was released from custody and commenced his term of supervised release on May 10, 1994.

On September 23, 1994, defendant pleaded nolo contendere in the Rhode Island Superior Court in Newport County to a charge of Assault with a Dangerous Weapon. On the same date, he was sentenced to a ten year term of incarceration, with three years to serve and seven years suspended, and he began serving that sentence immediately.

On June 16, 1997, defendant concluded his state term of imprisonment. One month prior to that, however, on May 16, 1997, the United States Probation Office filed its Petition with this Court, based on defendant's state offense. The Petition alleged a violation of the general condition of defendant's supervised release as follows:

General Condition — While on supervised release, the defendant shall not commit another federal, state, or local crime....

Violation — On September 23, 1994, the defendant plead (sic) guilty to a state charge of Assault with a Dangerous Weapon and received a sentence of incarceration.

Defendant did not contest the violation, but argued before the Magistrate Judge that the Petition should be dismissed because it was filed some thirty-two months after the state convictions.² Defendant maintained that this delay violated U.S.S.G. § 7B1.2(a), which states, "The probation officer shall promptly report to the court any alleged Grade A or B violation."³ Defendant contended that he was prejudiced by the thirty-two month delay, because it deprived him of the ability to argue to the federal court, at the time of the violation, that the sentence therefor should be concurrent with the state sentence on the underlying offense. Similarly, he asserted that he had been deprived of the ability to argue to the state court at the time of his plea and sentence that the state sentence should run concurrently with the federal sentence to be imposed for the violation, or be reduced or suspended in light of that anticipated federal sentence.

Defendant argued that his inability to make these arguments resulted in prejudice to him which necessitated dismissal of the Petition under the U.S.S.G., and under the Due Process Clause of the Fifth Amendment to the United States Constitution. Defendant argued further that the delay violated his right to a speedy trial under the Sixth Amendment to the United States Constitution. Finally, he contended that the delay violated Fed.R.Crim.P. 48(b).⁴

On July 9, 1997, after hearing, the Magistrate Judge in a Report and Recommendation concluded that defendant violated the terms and conditions of his supervised release (which was uncontested) and rejected all of defendant's contentions. He found them to be speculative and determined that "the mere loss of an opportunity to argue for and serve a concurrent sentence does not violate one's due process rights." The Magistrate Judge specifically found that Fed. R.Crim.P. 48(b) was inapplicable to the present situation.

The Magistrate Judge then recommended that defendant be sentenced to a term of twenty-one months incarceration, followed by fifty-one months of supervised release to be served consecutively to the state sentence. The Magistrate Judge further recommended that defendant be required to participate in a drug treatment program and pay the cost of supervision at the rate of $115.30 monthly.

On July 18, 1997, defendant filed an Objection to the Report and Recommendation, claiming that the Magistrate Judge neglected to adequately consider the proper consequences of the Probation Office's failure to comply with U.S.S.G. § 7B1.2(a). Defendant focused his argument on the due process issue, contending that the Magistrate Judge erred in not addressing the argument that the Probation Office's actions constituted a per se violation of his due process rights.

At the hearing on defendant's Objection to the Report and Recommendation, this Court invited the parties to address the issue of the meaning of the word "promptly" in § 7B1.2(a), as well as the consequences for noncompliance therewith.

On September 17, 1997, defendant submitted a memorandum arguing that the thirty-two month delay was not "prompt" within the meaning of § 7B1.2(a), but that the U.S.S.G. and case law did not indicate what should result from a violation of § 7B1.2(a). He repeated his earlier allegations of prejudice arising from the delay, and contended that, in light of this prejudice, "[j]ustice, fundamental fairness, and a constitutional right to procedural due process" provided the basis for relief. He once again sought dismissal of the violation, but in the alternative, additionally requested that his sentence for the violation either be made retroactively concurrent with the state sentence or be reduced or suspended.

The Government responded that while the thirty-two month delay was not "prompt", and thus in violation of § 7B1.2(a), defendant should not be granted the requested relief. The Government argued that § 7B1.2(a) was not intended to benefit defendants; indeed, the Government contended, many defendants would prefer never to have their violations reported at all. Rather, the Government maintained, § 7B1.2(a) was meant "to insure that the courts which have supervision of sentenced defendants have firm control over those defendants." Thus, defendant could not cite this section to his avail.

In addition, the Government continued, defendant could not claim prejudice in the inability to argue for concurrent sentences, because U.S.S.G. § 7B1.3(f) sets forth the United States Sentencing Commission's clear policy that sentences imposed for violation of supervised relief be made to be served consecutively to any other sentence a defendant may be serving⁵. Moreover, the Government pointed out that there was no indication of what occurred at the state sentencing, i.e., whether defendant had actually made the argument he now claims he was unable to make as a result of the thirty-two month delay. The Government, thus, urged the Court to reject defendant's contentions, and to adopt the Report and Recommendation.

The Court having considered the parties' arguments, the matter is now in order for decision.

II. Standard for Decision

This Court conducts a de novo review of the findings and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b). The disposition of a violation of supervised release is governed by 18 U.S.C. §§ 3553(a), 3583(e)(3) and (h), and U.S.S.G. §§ 7B1.1(a)(1)(i), 7B1.3(a)(1) and (g)(2), 7B1.4 (a),and 7B1.5(b).

III. Discussion

A. U.S.S.G. § 7B1.2(a)

U.S.S.G. § 7B1.2(a), entitled "Reporting of Violations of Probation and Supervised Release (Policy Statement)", states, "The probation officer shall promptly report to the court any alleged Grade A or B violation." There is no question in this case that the Probation Office did not comply with this provision. In its memorandum, the Government concedes that the Probation Office, in filing its Petition thirty-two months after defendant's conviction in the state court, did not act "promptly."⁶.

The question, then, is what should result from this failure to comply with § 7B1.2(a). The parties recognize that the guidelines themselves do not provide direction as to what relief should be granted in the case of a failure to "promptly" report an alleged violation, or indeed, whether any relief should be provided at all. Defendant argues that he has been prejudiced by the violation of § 7B1.2(a), and is thus entitled to the relief requested, as described supra. He further analogizes § 7B1.2(a) to the Speedy Trial Act, 18 U.S.C. §§ 3152-3156, 3161-3174, 28 U.S.C. § 604, which provides various remedies for violations of time limits within which a criminal defendant must receive a trial.

The Government counters that § 7B1.2(a) was not intended to benefit defendants but rather to ensure that federal courts would have the ability to monitor defendants on supervised release. The Government further maintains that U.S.S.G. § 7B1.3(f) defeats defendant's claim of prejudice because that secti...