United States v. Barber

381 F. Supp. 3d 660
CourtDistrict Court, E.D. Virginia
DecidedApril 29, 2019
DocketCriminal No. 3:19-CR-51
StatusPublished

This text of 381 F. Supp. 3d 660 (United States v. Barber) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barber, 381 F. Supp. 3d 660 (E.D. Va. 2019).

Opinion

Robert E. Payne, Senior United States District Judge

This matter is before the Court on the Defendant's APPEAL OF MAGISTRATE JUDGE DECISION (ECF No. 25), which challenges the sentence imposed by the Magistrate Judge for probation violations. For the reasons set forth below, the Court affirms the sentence imposed by the Magistrate Judge.

BACKGROUND

Shawn Barber ("Barber") was charged in June 2017 with simple possession of marijuana and cocaine, which are Class A Misdemeanors. See ECF No. 1. After being fully advised of her right to being tried and sentenced by a district judge, Barber signed a form waiving those rights. See ECF No. 3. On that form, Barber, inter alia, (1) "[w]aive[d] [her] right to trial, judgment and sentencing by a United States district judge"; (2) "[c]onsent[ed] to being tried, judged, and sentenced by a United States magistrate judge"; and (3) "[w]aiv[ed] [her] right to trial by jury before either a United States district judge or a United States magistrate judge." Id. The Government also had to "consent[ ] to Defendant being sentenced by a United States magistrate judge." Id.

Following this waiver, Barber pled guilty to both misdemeanors before Magistrate Judge Roderick Young. ECF No. 2. The parties agreed to pre-judgment probation under 18 U.S.C. § 3607 whereby Barber was placed on probation for one year with various conditions, including periodic drug testing. ECF No. 5. In other words, no judgment would be entered if Barber complied with the conditions of her probation for one year.

However, Barber did violate her probation. She tested positive for marijuana on several occasions in 2017. ECF No. 7. As a result, her probation was modified to require her to participate in a drug treatment program. ECF No. 6. She was referred to such a program, and failed to report for drug testing on several occasions. ECF No. 7. She also had failed other drug tests. Id.

Thereafter, the Probation Officer filed a petition for revocation of Barber's probation, and a revocation hearing was held before Magistrate Judge Young on May 7, 2018. ECF Nos. 7, 12. Barber pled guilty to violating her probation and judgment on the initial cocaine and marijuana possession offenses was entered. ECF No. 13. Barber was sentenced to 18 months' probation, with conditions of mental health evaluation, substance abuse treatment and testing, and attendance at 90 Narcotics Anonymous ("N.A.") meetings in 90 days. ECF No. 15.

On February 1, 2019, the Probation Officer filed a second petition alleging that Barber had once again violated the conditions *663of her probation. ECF No. 16. That petition charged four probation violations: (1) driving under a suspended license;1 (2) marijuana use; (3) failure to pay special assessment; and (4) failure to attend 90 N.A. meetings in 90 days. Id. Magistrate Judge Young held an initial hearing on Barber's probation violations on February 19, 2019, and a final hearing on February 22, 2019. ECF Nos. 27, 38.

At the February 19 hearing, Magistrate Judge Young heard testimony from Barber's mother, in which she explained her daughter's violations. See Feb. 19 Hr'g Tr. 8-17 (ECF No. 38). Barber's mother testified that: (1) Barber had transportation difficulties because her driver's license had been revoked; (2) Barber's Probation Officer had told her (the mother) to wait on paying the special assessment; (3) Barber struggled with mental health issues; (4) Barber lived in a crime-ridden area; and (5) Barber had made efforts at working (which were complicated by her lack of a driver's license). Id. At the end of the hearing, Magistrate Judge Young remanded Barber to custody pending her final hearing a few days later. Id. at 25.

At the February 22 hearing, Barber pled guilty to the remaining three violations of the conditions of her probation.2 See Feb. 22 Hr'g Tr. at 10 (ECF No. 27). The Government asked for three months' incarceration, followed by no supervision, because Barber had not complied with the terms of her probation and because she had "breach[ed] [the Court's] trust." Id. at 12-13. The Government argued that such a sentence, which was at the low end of the Guidelines, was "sufficient" and satisfied the "factors of 3553(a)." Id. Barber sought home detention (with electronic monitoring) to be served at her parents' home. Id. at 22-23. Barber argued that various factors explained her probation violations: that it was difficult to attend 90 N.A. meetings in 90 days because her driver's license had been revoked; that her obligations to her children made complying with the 90-meeting condition difficult; that she was also required to have a job; and that she has struggled with mental health issues. Id. at 13-20. Additional time in prison, she argued, was unnecessary and would "exacerbate" her mental health issues. Id. at 22.

After hearing the evidence and argument, Magistrate Judge Young sentenced Barber to three months' imprisonment with no supervision to follow. Id. at 24-26. In imposing this sentence, Magistrate Judge Young considered the Guidelines, Barber's past performance on probation, arguments of counsel, and the Section 3553 factors. Id.

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381 F. Supp. 3d 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barber-vaed-2019.