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United States v. Stewart

United States District Court, W.D. Wisconsin

July 30, 2019




         A hearing on the probation office's petition for judicial review of Lucas Stewart's supervised release was held on July 24, 2019, before U.S. District Judge James D. Peterson. The government appeared by Assistant U.S. Attorney Meredith P. Duchemin. Defendant was present in person and by counsel David R. Karpe. Also present by telephone was U.S. Probation Officer Brad Schalow.

         From the record, I make the following findings of fact.


         Defendant was sentenced in the Western District of Wisconsin on August 19, 2015, following his conviction for Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1). This offense is a Class C felony. He was committed to the custody of the Bureau of Prisons to serve a term of imprisonment of 42 months, to be followed by a three-year term of supervised release. On November 21, 2017, defendant's term of supervised release commenced.

         Defendant violated Special Condition No. 15 requiring that he submit to drug testing. Defendant stipulated that he missed two drug tests, on November 19, 2018, and April 16, 2019. Evidence at the hearing established that he also missed a drug test on June 9, 2018, although defendant had offered an excuse for that missed test.

         Defendant violated Standard Condition No. 2 requiring him to a complete written report within the first five days of each month. Defendant failed to submit monthly supervision report forms to his probation officer for the following months: January 2018, June 2018, November 2018, December 2018, January 2019, and February 2019. Officer Schalow also testified that defendant had not filed his report for June 2019.

         Defendant also failed to follow Officer Schalow's instructions in two respects. First, defendant did not attend any dual diagnosis treatment between November 12, 2018, and July 3, 2019, despite the requirement in Special Condition No. 14 that he participate in mental health treatment, and the requirement in Special Condition No. 15 that he participate in substance abuse treatments. Second, defendant failed to follow Officer Schalow's instruction that he not use cannabidiol (CBD) products, pursuant to this court's policy for those under supervision. I do not find that these failures constitute violations because defendant's actions do not directly contradict the written terms of his supervision.

         Defendant's criminal history category is V. Defendant's violations are Grade C violations under §7B1.1(a)(3). A Grade C violation coupled with criminal history category of V results in an advisory guideline range of imprisonment of 7 to 13 months. The maximum term of supervised release that can be re-imposed is 36 months, less any term of imprisonment imposed upon revocation, pursuant to 18 U.S.C. § 3583(b)(2).


         Defendant has violated some terms of his supervision, but those violations alone would not warrant revocation. His more serious problems are: (1) he has not fully engaged in treatment, and (2) he has engaged in disrespectful, angry, and sometimes defiant behavior that makes him difficult to supervise. Based on my discussion with defendant at the hearing, I conclude the defendant's needs and the interests of justice will best be served by continuing his supervision under updated and clarified terms of supervision. Accordingly, defendant's supervision is continued on the terms below, which reflect the current versions standard and special conditions in this district.

         I offer here a few words of explanation of the conditions most at issue now.

         The court's policy is that those under supervision may not use CBD products with a prescription. CBD products may contain enough THC to result in a positive drug test, which would frustrate testing for marijuana use. Defendant acknowledges that he understands the court's CBD policy and he has agreed to the new Standard Condition No. 5.

         The court expects defendant to engage in regular sessions with his mental health/substance abuse treatment provider. The court is not satisfied with the current arrangement under which defendant gets treatment only when he feels the need. The court will leave it to defendant's treatment provider, Officer Schalow, and defendant himself to set ...

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