Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14

PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH C. WELTY Assistant U.S. Attorney Arizona State Bar No. 012409 [email protected] Two R enaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-01-175-PHX-ROS Plaintiff, v. Shannon Lee McColery, Defendant. Pursuant to the Court's August 8, 2005 order, the government, by and through MEMO RANDUM RELATING TO PROPOSED DISPOSITION

15 undersigned counsel hereby submits the following memorandum relating to proposed 16 disposition. 17 Respectfully submitted this 29th day of August, 2005. 18 19 20 21 22 23 24 25 26 27 28 s/ Joseph C. Welty JOSEPH C. WELTY Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:01-cr-00175-ROS

Document 47

Filed 08/29/2005

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Facts

MEMORANDUM

On August 8, 2001 defendant Shannon Lee McColery pled guilty to Possession of Stolen Mail. On October 25, 2001 the defendant was sentenced by this court to time served (9 months) to be followed by three year term of supervised release. Because the defendant had been identified as having a drug problem, her supervised release contained a special condition that she participate in a program of substance abuse treatment. Defendant's supervised release term commenced on November 22, 2002 following her release from Arizona DOC. Upon her release, the defendant was required to submit to regular urine testing. The defendant remained clean for approximately a year and a half. In June of 2004, the defendant tested positive for methamphetamine. Immediately following the positive result, the defendant enrolled in the Dove Recovery Treatment Program. The defendant remained clean in the program until September of 2004 when she again tested positive for methamphetamine twice. At that time the probation department sought to have the defendant enroll in an inpatient program but she refused. Instead she enrolled and completed an intensive out-patient program at Terros while continuing to participate in treatment at the aforementioned Dove Recovery. Defendant's Terros program ended in February of 2005. Two months later, the defendant submitted a suspicious urine sample to Task. A second suspicious sample was submitted one month later. The defendant admitted that one of the suspicions sample was an attempt to "fake" the drug test, presumably because she believed she would test positive. II. Argument 1. Revocation of Supervised Release is Mandatory Pursuant to Title 18 United States Code Section 3583(g)(3) and (4), the revocation of the defendant's supervised releases is mandatory if the court finds by a preponderance of the evidence that the defendant, "refused to comply with drug testing imposed as a condition of supervised release," or "tests positive for illegal controlled substances more than three times over 2

Case 2:01-cr-00175-ROS

Document 47

Filed 08/29/2005

Page 2 of 5

1 2 3 4 5 6 7

the course of one year." The facts in this case support both findings. The defendant tested positive for methamphetamine on June 28, 2004; September 20, 2004; and October 12, 2004. This constitutes three times over the course of one year. In addition, the defendant's suspicious submission of urine in an admitted attempt to "fake" the drug test, clearly constitutes a refusal to comply with drug testing. 2. The Defendant Should be Sentenced to Ten Months Incarceration to be Followed by an Additional Term of Supervised Release. While the court must revoke the defendant's supervised release, the court has broad

8 discretion in determining how much incarceration time should be imposed. There are no 9 agreements or stipulations between the parties that in any way restrict the court's action in this 10 respect. As the defendant plead guilty in August 8, 2001, to a class D felony, the court may 11 sentence the defendant to 24 months incarceration. Pursuant to the policy statement set forth in 12 Section 7B1.4(a) of the United States Sentencing Guidelines, if the Court finds that the 13 defendant has committed a Grade C violation of supervised release, and has a criminal history 14 category of V, her guideline sentencing range would be 7 to 13 months. 15 If the court sentences the defendant to 24 months incarceration at the time of disposition, 16 the court exhausts its ability to punish the defendant further following any future supervised 17 release violation stemming from the October 25, 2001 judgement of guilt. If the court believes 18 that no additional supervision or treatment will assist the defendant, than this would be an 19 appropriate disposition. 20 The government would recommend at the time of disposition in this matter that the 21 defendant be sentenced to 10 months incarceration, followed by an additional term of supervised 22 release. The government would anticipate that any further term of supervised release would 23 include a drug treatment component. 24 following: 25 // 26 // 27 28 3 The government bases its recommendation on the

Case 2:01-cr-00175-ROS

Document 47

Filed 08/29/2005

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1) The ten months is one month longer than the defendant's original incarceration term. 2) The ten month term will serve as a wake-up call to remind the defendant that her failure in drug treatment has consequences. 3) The ten month sentence can be followed by an additional term of supervised release that will include drug treatment. Defendant will know as she takes on that future drug treatment program that the court can still sentence her to fourteen months in prison if she fails her program again. 4) Notwithstanding her failures, the defendant has done some important drug treatment work. She stayed clean for a year and a half following her release. She participated actively in the Dove Recovery and completed an intensive Terros program. Additional treatment with the threat of 14 more months in custody may help her tackle her drug problem. III. Conclusion For the above stated reasons, the government recommends that at the time of disposition, the defendant be sentenced to ten months incarceration followed by an additional term of supervised release. Respectfully submitted this 29th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Joseph C. Welty JOSEPH C. WELTY Assistant U.S. Attorney

4

Case 2:01-cr-00175-ROS

Document 47

Filed 08/29/2005

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE

I hereby certify that on August 29, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Michael S. Ryan Kent & Ryan PLC 45 W. Jefferson, Suite 206 Phoenix, AZ 85003-0001 [email protected]

5

Case 2:01-cr-00175-ROS

Document 47

Filed 08/29/2005

Page 5 of 5