USA v. Stubbs

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
-v-
WINSETT DERRICK STUBBS,
Defendant .
DECISION & ORDER
18-CR-6093-MAV
Presently before the 	Court is 	the 	issue 	of Defendant Winsett Derrick
Stubbs' detention pending further proceedings on his alleged violation of the
conditions of supervised release. 	For the 	reasons 	set forth below, 	Stubbs is
ordered to be detained pending his revocation hearing. He is not precluded from
seeking a detention hearing under Rule 32.l(b) in the meantime.
BACKGROUND
On July 26, 2018, Stubbs was convicted by plea on a felony information
charging two counts of bank robbery in violation of 18 U.S.C. § 2113(a). ECF Nos.
15-16. On May 20, 2019, Stubbs was sentenced by Hon. David G. Larimer to a
total term of 84 months imprisonment and 3 years of supervised release. ECF
Nos. 25-26.
Stubbs began his period of supervised release on December 22, 2023. ECF
No. 	35 	at 	1. 	On 	December 	19, 	2024, 	the 	United 	States 	Probation 	Office
("Probation Office") informed the Court that it had reason to believe Stubbs had
violated two standard conditions of his supervised release: (1) living at a place
approved by the 	probation officer, 	and 	(2) 	following the 	instructions 	of the
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probation officer related to the conditions of supervision. ECF No. 35 at 1-2. A
warrant for Stubbs' arrest was issued on December 20, 2024. ECF No. 35. At his
initial appearance on January 10, 2025, Stubbs was ordered detained, but on
January 14 agreed to the Probation Office's recommendation that he be released
to the Salvation Army Adult Rehabilitation Program. ECF No. 38.
On January 24, 	2025, the Probation Office informed the 	Court that it
believed Stubbs had again violated the conditions of his supervision that he live
in a place approved by his probation officer and follow his probation officer's
instructions, 	and 	another 	warrant 	was 	issued 	for 	his 	arrest. 	ECF 	No. 	39.
Specifically, the Probation Office had been notified by the Salvation Army Adult
Rehabilitation 	Center that 	Stubbs 	"was being unsuccessfully discharged for
stealing." Id. at 2. After his initial appearance before the Court, Stubbs was again
detained. ECF No. 40. On February 7, 2025, he was released with conditions,
including that he reside at the Francis Center, participate in location monitoring
via GPS, and observe a curfew. ECF Nos. 43-44. He later moved to the "Grace
House" with the Probation Officer's approval. ECF No. 45 at 2.
On March 25, 2025, a warrant was issued for Stubbs' arrest. On March 27,
2025, Stubbs was again before the Court, and the Probation Office indicated that
it had reason to believe Stubbs had violated the conditions of his supervision yet
again, this time with respect to the conditions of the location monitoring program.
ECF No. 45. The Probation Office alleged that on March 25, 2025, Stubbs failed
to return to the Grace House for his required curfew, and GPS mapping indicated
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that he stayed at a different residence at which he had already been instructed
not to stay. ECF No. 45 at 2. He was ordered detained pending further revocation
proceedings.
At his appearance, Stubbs, through counsel, objected to the Court's order
that he be detained pending further proceedings. ECF No. 46. He submitted a
Memorandum in Opposition on March 31, 2025 (ECF No. 47, as amended ECF
No. 48), and the government responded on April 3, 2025 (ECF No. 50).
LEGAL PRINCIPLES
18 U.S.C. § 3583(a) authorizes "[t]he court, in imposing sentence to a term
of imprisonment for a felony ... [to] include as part of the sentence a requirement
that the defendant be placed on a term of supervised release after imprisonment
. . . ." The 	statute 	also instructs the 	Court to impose 	a 	number of explicit
conditions on the defendant's supervised release, and authorizes the Court to
order further conditions in accordance with the law. 18 U.S.C. § 3583(d). "If there
is probable cause to believe that a probationer or a person on supervised release
has violated a condition of his probation or release, he may be arrested, and, upon
arrest, 	shall 	be 	taken 	without 	unnecessary 	delay 	before 	the 	court 	having
jurisdiction over him." 18 U.S.C. § 3606.
Federal Rule of Criminal Procedure 32. l(a)(3) outlines the procedure once
the defendant is taken before the court. He must be informed of the alleged
violation, his right to retain counsel or have counsel appointed, and his right to a
preliminary hearing under 32.l(b) to determine whether there is probable cause
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to 	believe 	a 	violation 	occurred. 	Fed. 	R. 	Crim. 	P. 	32.l(a)(3)(A)-(C). 	Further,
32. l(a)(6) 	outlines the procedure that 	governs the 	court's consideration of a
defendant's release or detention pending a hearing on an alleged violation of
supervised release. See Fed. R. Crim. Pro. 46(d). Rule 32.l(a)(6) provides that the
court "may release or detain the [defendant] under 18 U.S.C. § 3143(a) pending
further proceedings." Fed. R. Crim. P. 32.l(a)(6). In pertinent part, 18 U.S.C.
§ 3143(a) states:
[T]he judicial officer shall order that a person who has been found
guilty of an offense and who is awaiting imposition or execution of
sentence ... be detained, unless the judicial officer finds by clear and
convincing evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if released
18 U.S.C. § 3143(a)(l). "The burden of establishing that the person will not flee
or pose a danger to any other person or to the community rests with the person."
Fed. R. Crim. P. 32.l(a)(6).
Under 18 U.S.C. § 3583(e)(3), the Court may revoke the term of supervised
release, "and require the defendant to serve in prison all or part of the term of
supervised release authorized by the statute for the offense that resulted in such
term 	of 	supervised 	release 	without 	credit 	for 	time 	previously 	served 	on
postrelease supervision, if the court, pursuant to the Federal Rules of Criminal
Procedure 	applicable 	to 	revocation 	of 	. 	. 	. 	supervised 	release, 	finds 	by 	a
preponderance 	of the 	evidence 	that 	the 	defendant 	violated 	a 	condition 	of
supervised release .... " 18 U.S.C. § 3583(e)(3); see also United States v. Peguero,
34 F.4th 143, 159 (2d Cir. 2022) (affirming that revocation of supervised release
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under 18 U.S.C. § 3583(e)(3) is constitutional).
DISCUSSION
In his amended memorandum, Stubbs adopts the position from 	United
States v. Mercado, No. 13-CR-181 (SRU), 2025 WL 297429 (D. Conn. Jan. 24,
2025). He argues that his detention is not authorized under 18 U.S.C. § 3143(a)
because he has "neither been (1) 'found guilty of an offense' nor is he (2) 'awaiting
imposition or execution of sentence,"' and that Rule 32.1 cannot be the source of
the Court's authority to order him detained because a procedural rule cannot
"abridge, enlarge or modify any substantive right." 	ECF No. 	48 at 4-5. The
government responds that Rule 32.1 is a presumptively valid provision with the
force of law, and detention is warranted for the other reasons set forth by this
Court in United States v. Malta, Case No. 09-CR-6018. ECF No. 50.
A. 	The Mercado decision
The 	Mercado 	court 	noted 	that 	the 	Non-Detention 	Act 	prohibits 	the
detention of a United States citizen without statutory authorization. Mercado,
2025 WL 297 429, at *I. The court then identified two grounds for its finding that
18 U.S.C. § 3143(a) could not authorize the detention of a defendant prior to the
revocation of his supervised release.
First, the Mercado court examined 18 U.S.C. § 3143(a)'s application to "a
person who has been found guilty of an offense." The court stated that in order to
avoid Double Jeopardy concerns, 	18 U.S.C. 	§ 3143(a) could only authorize a
defendant's detention if "he were found guilty of a new offense." Mercado, 2025
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WL 297429 at *4. The court further reasoned that a defendant awaiting a hearing
on an alleged violation of his supervised release had not yet been found guilty,
and concluded that 18 U.S.C. § 3143(a) was inapplicable. Id.
Second, the Mercado court stated that a defendant could not be detained
prior to the revocation of his supervised release because he is awaiting neither
the 	imposition nor 	the 	execution 	of his 	sentence, 	as 	required by 	18 U.S.C.
§ 3143(a). Mercado, 2025 WL 297429 at *4-5.
Lastly, in addition to explaining the grounds for finding 18 U.S.C. § 3143(a)
could not authorize the detention of a defendant prior to the revocation of his
supervised release on its own, the Mercado court rejected the argument that the
detention was authorized by Rule 32.1 when read in connection with§ 3143(a).
Mercado, 2025 WL 297 429 at *6. The court reasoned that the Federal Rules of
Criminal Procedure cannot "abridge, enlarge, or modify any substantive right."
Id. (quoting 28 U.S.C. § 2072(b)).
B. 	The Court respectfully disagrees
As indicated above, 18 U.S.C. § 3606 provides that a person on supervised
release "may be arrested, and, upon arrest, shall be taken without unnecessary
delay before the court having jurisdiction over him" if there is probable cause to
believe he has violated a condition of his release. The Court notes that at the time
of his 	appearance 	on 	March 	27, 	2025, 	Stubbs 	was 	held in 	federal 	custody
pursuant to a valid warrant issued on March 25, 2025, the probable cause behind
which was articulated in a "Second Amended Petition for Warrant or Summons
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of Offender Under 	Supervision." 	ECF No. 	45 	at 	1. 	In 	short, 	Stubbs' 	initial
detention was expressly authorized by statute.
More to the point, contrary to the conclusions of the Mercado court, and of
Judge McCarthy in United States v. Wade, No. 1:09-CR-260-WMS-JJM, 2025 WL
786383 	(W.D.N.Y. 	Mar. 	12, 	2025), 	the 	Court 	finds 	that 	Stubbs' 	continued
detention prior to his revocation hearing is also expressly authorized by statute.
Having considered the reasoning of the Mercado and Wade decisions, the statutes
themselves, and relevant Supreme Court and Second Circuit precedent, the Court
concludes 	that 	18 	U.S.C. 	§ 3143(a)(l) 	authorizes 	a 	judicial 	officer 	to 	order
detention of a defendant on supervised release pending a revocation hearing. See,
e.g., United States v. Smith, No. CR 08-376, 2020 WL 2747671, at *3 (W.D. Pa.
May 27, 2020) (''Section 3143(a)(l) creates a rebuttable presumption in favor of
detention.") (citation omitted).
To begin with, 	the 	person alleged to 	have 	violated 	a 	condition of his
supervised release is "a person who has been found guilty of an offense" under 18
U.S.C. § 3143(a)(l). Binding Supreme Court and Second Circuit precedent holds
that 	sanctions 	for 	violations 	of 	supervised 	release 	are 	attributable 	to 	the
defendant's original conviction. See, e.g., Johnson v. United States, 529 U.S. 694,
701 (2000) ("We therefore attribute post[-]revocation penalties to the original
conviction."); 	United 	States 	v. 	McNeil, 	415 	F.3d 	273, 	277 	(2d 	Cir. 	2005)
("Imposition of supervised release is authorized by the original conviction, and so
too are the consequences of its violation."). The Mercado court's conclusion that
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18 U.S.C. § 3143(a)(l) could only authorize a defendant's detention if "he were
found 	guilty of a 	new offense" is inconsistent with this precedent. 	See, 	e.g.,
Peguero, 34 F.4th at 161 ("[B]ecause the requirement that a defendant abide by
the conditions of supervised release flows directly from the original sentence,
revoking a term of supervised release for violating such conditions is not a new
criminal prosecution.").
Moreover, the person alleged to have violated a condition of his supervised
release is "awaiting the imposition or execution of sentence" under 18 U.S.C.
§ 3143(a)(l). The Supreme Court has stated that, as a component of the initial
sentence, "[s]upervised release is a form of post[-]confinement monitoring that
permits a defendant a kind of conditional liberty by allowing him to serve part of
his sentence outside of prison." Mont v. United States, 587 U.S. 514, 523 (2019).
Similarly, the Second Circuit has described supervised release as "a suspension
of the execution of the sentence imposed after that conviction." Villiers v. Decker,
31 F.4th 825, 834 (2d Cir. 2022) 	(emphasis added) 	(quoting United States v.
Markovich, 348 F.2d 238, 241 (2d Cir. 1965)). In other words, the courts equate
the time a defendant is on supervised release to a suspension of the execution of
the original sentence insofar as he is released on certain conditions which, if
violated, could result in reimprisonment attributable to his original conviction.
Thus, a defendant validly detained upon probable cause to believe that he has
violated the conditions of his supervised release is "awaiting the execution of his
sentence" under 18 U.S.C. § 3143(a)(l).
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Finally, 	Rule 	32.l(a)(6) 	does 	not 	"abridge, 	enlarge, 	or 	modify 	any
substantive right." 28 U.S.C. § 2072(b). "While an individual whose release is
sought to be revoked is entitled to due process such as notice of the alleged
grounds for revocation, a hearing, and the right to testify at such a hearing, due
process does not entitle him to the full range of rights he would have in a criminal
prosecution." Villiers, 31 F.4th at 833 (citing Morrissey v. Brewer, 408 U.S. 471,
480-82 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973); Johnson, 529
U.S. at 700).
Courts have generally recognized that the defendant is also entitled to
pursue release after his initial arrest: "even prior to amending Rule 32.1, the
courts applied the Bail Reform Act when determining if an offender should be
released or detained pending further revocation proceedings." United States v.
Woodard, 	No. 4:10CR3083, 2011 WL 1790818, at *2 (D. Neb. Apr. 19, 2011),
report and recommendation adopted, No. 4:10CR3083, 2011 WL 1780543 (D. Neb.
May 10, 2011) (citing, inter alia, United States v. Loya, 23 F.3d 1529, 1531 (9th
Cir. 1994) (" ... we hold that if a defendant moves for bail pending his or her
revocation hearing, the district court shall determine the person's eligibility for
release under the standards of release set forth in 18 U.S.C. § 3143."); U.S. v.
Prescott, 360 Fed. App'x 209 (2d Cir. 2010); U.S. v. Smith, 500 F.3d 27 (1st Cir.
2007); United States v. Mincey, 482 F. Supp. 2d 161 (D. Mass. 2007)).
Thus, "[t]he language of Rule 32.l(a)(6) was 'designed to end confusion
regarding the 	applicability of 18 U.S.C.[ ] § 3143(a) to release 	or detention
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decisions involving persons on probation or supervised release, and to clarify the
burden of proof in such proceedings."' 	Woodard, 	No. 	4:10CR3083, 	2011 	WL
1790818, at *2 (quoting Fed. R. Crim. P. 32.1, Advisory Committee Notes (2010
Amendments)). That is, Rule 32.l(a)(6) did not enlarge or abridge a substantive
right; it clarified the means by which the defendant can be released or detained
pending further proceedings. See United States, v. Deshaw, No. CR 21-30-BU-
DLC, 2025 WL 1024315, at *2 (D. Mont. Apr. 7, 2025); United States v. Rawls,
No. 4:18-CR-49-DPM, 2022 WL 2439571, at *2 (E.D. Ark. July 5, 2022). See also
Fed. 	R. 	Crim. P. 	32.1, Advisory Committee Notes 	(2002 Amendments) 	("The
Committee believes that the new language [regarding defendant's burden] is not
a substantive change because it makes no change in practice.").
In the present case, by including a term of supervised release in Stubbs'
sentence, Judge Larimer granted him "a term of conditional liberty by allowing
him to serve part of his sentence outside of prison." Mont, 587 U.S. at 523. As
such, the maximum term of imprisonment that Stubbs faced for his original bank
robbery convictions was the 84 months of imprisonment that Judge Larimer
ordered, plus - if he is found to have violated the conditions of his release - the
full term of his supervised release without credit for the time previously served
on post-release supervision. See Peguero, 34 F.4th at 160.
Further, Stubbs was arrested on a valid warrant consistent with 18 U.S.C.
§ 3606, and brought before the Court for his initial appearance in accordance with
Federal Rule of Criminal Procedure 32.1. However, at his appearance, Stubbs
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offered no evidence to suggest that he would not flee or pose a danger to other
people or the community. Therefore, Stubbs's detention as "a person who has been
found 	guilty 	of an 	offense 	and 	who 	is 	awaiting imposition 	or 	execution 	of
sentence," is authorized under 	18 U.S.C . § 3143(a)(l). 	Nothing at this point
precludes Stubbs from seeking a detention hearing under Federal Rule 32.l(b).
Accordingly, it is hereby ORDERED that Defendant Winsett Derrick Stubbs
be detained pending further proceedings.
SO ORDERED.
DATED: 	April £ , 2025
Rochester, New York
0:i	!l£itt!IK!1!tfr-United States District Judge
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