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FILED

SEP 2 0 20\3

CI rk U S District Court

8DiStnCt Ot Montana

Missoula

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

UNITED STATES OF AMERICA,

CR 09-96-GF-DLC-RKS

Plaintiff,

vs.

ORDER

HEATHER WISBY STEWART,

Defendant.

This case was referred to United States Magistrate Judge Keith Strong for a

revocation hearing and findings and recommendations. Judge Strong entered

findings and recommendations on August 29,2013. He found that Defendant

violated the Preamble to Standard Conditions of her supervised release by

admitting to using methamphetamine. Judge Strong recommends that this Court

revoke Defendant's supervised release and commit her to the custody of the

United States Bureau of Prisons for a term of imprisonment of 15 months with no

supervised release. Defendant timely objected to Judge Strong's recommendation

and is therefore entitled to de novo review of the specified findings or

recommendations to which she objects. 28 U.S.C. § 636(b)(1). The portions of

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the findings and recommendations not specifically objected to will be reviewed for

clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d

1309,1313 (9thCir.1981).

This Court agrees with Judge Strong's finding that Defendant violated the

Preamble to Standard Conditions ofher supervised release by using

methamphetamine. Defendant admitted to the violation and allocuted before

Judge Strong. Judge Strong is also correct that the United States Sentencing

Guidelines call for 4 to 10 months imprisonment, and a term of supervised release

up to 36 months less any custodial time imposed.

Defendant objects to Judge Strong's recommended sentence on the basis

that he considered a statement she made to probation officers while in custody

without being advised of her Miranda rights. Defendant hid from law

enforcement once learning that a warrant had been issued for her arrest, and she

was eventually found in a junkyard trailer guarded by vicious dogs. Law

enforcement had to pepper spray the dogs to reach Defendant and the pepper spray

impacted some of the arresting officers. After arresting Defendant, one ofthe

officers asked her why she did not tum herself in, and she responded that the result

would be the same whether she turned herself in or not. This is the statement

Defendant argues was improperly considered by Judge Strong.

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This Court agrees that a sentence of 15 months custody followed by no

supervised release is appropriate given Defendant's history of prior supervised

release violations and her utter failure to take advantage of any of the

opportunities for recovery provided to her by the United States Probation Office.

Defendant was warned after a positive drug test in May of this year, and was

provided outpatient substance abuse treatment. Her probation officer made

arrangements for her to receive inpatient treatment when she tested positive again

in July, but instead of going to treatment Defendant absconded. Defendant's

actions put law enforcement officers at risk, and it is her actions-not any

statements she made to law enforcement after her arrest-that warrant an above­

guidelines sentence. Defendant showed no contrition at the revocation hearing

and has made little effort to cooperate in her treatment plans. Disregarding

Defendant's post-arrest statements entirely, the Court still agrees with Judge

Strong's recommendation. Defendant has continued to use illicit drugs while on

supervision, absconded from law enforcement and refused to attend inpatient

treatment, and put law enforcement officers at risk by fleeing. These factors

justify an above-guidelines sentence and Judge Strong's recommendations will be

adopted in full.

IT IS ORDERED that Judge Strong's Findings and Recommendations (doc.

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29) are ADOPTED in full and Judgment shall be entered accordingly.

DATED this 20'fL.,day of Sept em

r,2013.

Dana L. Christensen, Chief dge
United States District Court

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