6:06-cr-00040
E.D. Tex.Jun 15, 2017Background
- Michael J. Wing was convicted of wire fraud (Class C felony) and sentenced in 2007 to 120 months imprisonment and 3 years supervised release; he began supervision on December 24, 2014.
- A First Amended Petition (filed May 9, 2017) alleged three violations of supervised release: (1) providing untruthful information about tuition funding; (2) incurring new credit without probation approval; and (3) associating with a convicted felon without permission.
- At the June 15, 2017 revocation hearing Wing pleaded "true" to Allegation 2 (incurring new credit without approval); the parties agreed on a recommended disposition.
- The admitted violation is classified as a Grade C supervised-release violation; with criminal-history category I the advisory guideline range is 3–9 months imprisonment.
- The magistrate judge considered 18 U.S.C. § 3583(e) factors and recommended revocation, a sentence of 6 months imprisonment and 1 year of supervised release, with reporting to BOP allowed 30 days after judgment.
- Defendant waived his right to object and to allocute; the government waived objection to the recommendation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wing violated supervised-release condition by obtaining new credit without approval | Probation: credit inquiries and account records show Wing obtained new credit on multiple dates without permission | Wing: did not contest plea to Allegation 2 at hearing (no contrary factual claim preserved) | Court found Wing violated the special condition (pled true) and committed a Grade C violation |
| Appropriate sanction for Grade C violation | Probation/Gov: incarceration is warranted to address noncompliance; parties agreed to 6 months or 120 days to finalize business transaction | Wing: parties negotiated either 120-day delay to finalize business or 6 months imprisonment followed by 1 year supervised release | Court recommended 6 months imprisonment and 1 year supervised release (with 30-day delayed reporting option) |
| Whether other alleged violations (truthfulness; association with felon) required findings | Probation alleged untruthfulness and impermissible association | Wing did not admit those allegations at hearing; proceeding focused on admitted credit violation | Court limited revocation and sanction to the admitted (Allegation 2) violation |
| Guideline range and statutory limits applicable on revocation | Guidelines: Grade C, CH I → 3–9 months; statutory maximum for Class C revocation is 2 years | Defense: considered § 3553(a) factors and request for location preference (FPC Tucson) | Court applied guideline range, § 3553(a) factors and recommended mid-range sentence of 6 months plus 1 year supervised release and accommodation request if possible |
Key Cases Cited
- United States v. Rodriguez, 23 F.3d 919 (5th Cir. 1994) (procedural authority regarding magistrate judge duties on supervised-release revocation referrals)
- United States v. Smith, 978 F.2d 181 (5th Cir. 1992) (drug use can constitute possession for purposes of § 3583(g))
- United States v. Price, [citation="519 F. App'x 560"] (11th Cir. 2013) (Chapter 7 policy statements governing revocation are non-binding)