USA v. Diaz

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA

v. | CR No. 17-110-01JJM

AUDI E. DIAZ |
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.

This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) and 18 U.S.C. §
3401(i) for proposed findings of fact concerning whether Defendant Audie E. Diaz is in violation
of the terms of his supervised release and, if so, for recommended disposition. In compliance
with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1,
Defendant appeared initially on October 10, 2023, waived his right to a revocation hearing and
admitted that the government has evidence sufficient to prove the violations by a preponderance
of the evidence. An order of detention issued as a detainer because Defendant was held without
bail by the State. Following a continuance at Defendant’s request to allow him time to resolve
the state charges underlying Violation No. 1, he appeared again on January 23, 2024, the parties
presented sentencing arguments and Defendant exercised his right of allocution.

Based on Defendant’s admissions and the following analysis, I recommend that the Court
impose a sentence of twelve months of incarceration to run consecutive to the incarcerative
portion of Defendant’s State sentence. I further recommend that the term of incarceration be
followed by a twenty-fourth-month term of supervised release. During the term of supervised
release, I recommend that Defendant be subject to the following conditions:

1. The defendant shall participate in a program of substance abuse treatment
(inpatient or outpatient), as directed and approved by the Probation Office.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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2. The defendant shall participate in a program of substance abuse testing
(up to 72 drug tests per year) as directed and approved by the Probation
Office.
3. The defendant shall participate in a program of mental health treatment
as directed and approved by the Probation Office.
4. The defendant shall contribute to the cost of all ordered treatment and
testing based on ability to pay as determined by the probation officer.
5. The defendant shall permit the probation officer, who may be
accompanied by either local, state, or federal law enforcement authorities,
upon reasonable suspicion of a violation of supervision by possessing
firearms, to conduct a search of the defendant’s residence, automobile, and
any other property under the defendant's control or ownership.
I. 	BACKGROUND
On May 19, 2023, the Court granted the Probation Office’s petition for the issuance of a
warrant charging Defendant with the following violations:
Violation No. 1 Mandatory Condition: The defendant must not commit another
federal, state or local crime.
Mr. Diaz committed the following eight felony offenses on May 16, 2023, as evidenced
by charges filed in Sixth Division District Court case number 62-23-03875. Counts 1 &
6: Possession of Firearm Prohibited – Person Convicted of Crime of Violence, Count 2:
Possession of a Stolen Firearm, Count 3: License or Permit to Carry Concealed Pistol or
Revolver, Counts 4 & 5: Manufacture/Delivery/Possession with Intent to
Manufacture/Deliver a Controlled Substance 1st Offense, Counts 7 & 8: Carrying
Dangerous Weapons/Substances Committing Crime of Violence 1st Offense.
Violation No. 2 Mandatory Condition: The defendant must refrain from any
unlawful use of a controlled substance. The defendant must submit to one drug test
within 15 days of release from imprisonment and at least two periodic drug tests
thereafter, as determined by the court.
Mr. Diaz used fentanyl on July 8, 2022, and March 21, 2023, both as evidenced by
positive drug test results.
Defendant was held by the State from his arrest on May 17, 2023. With the State charges still
pending, Defendant appeared initially before the Court on October 10, 2023. At his initial
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appearance, Defendant waived his right to a revocation hearing and admitted that the government
had evidence sufficient to prove the violations by a preponderance of the evidence. Based on his
admissions, I found Defendant guilty of violating the terms and conditions of his supervised
release. At the October 2023 hearing, Defendant requested a continuance to resolve the State
charges underlying Violation No. 1. On December 28, 2023, Defendant pleaded nolo contendere
to State felony charges of possession with the intent to deliver fentanyl and possession with
intent to deliver fentanyl and/or acetyl fentanyl when armed with, or having available, a nine-
millimeter firearm; the remaining charges were dismissed. Defendant was sentenced by the State
to eight years of incarceration, with eighteen months to serve and seventy-eight months
suspended with probation for eight years. Defendant’s counsel roughly estimates that Defendant
is likely to complete the incarcerative portion of this State sentence in June 2024.
On January 23, 2024, the parties’ sentencing recommendations and Defendant’s
allocution were presented to this Court.
II. 	APPLICABLE LAW
Title 18 U.S.C. § 3583(e)(3) provides that the Court may revoke a term of supervised
release and require the defendant to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term of supervised release without
credit for time previously served on post-release supervision, if the Court finds by a
preponderance of evidence that the defendant has violated a condition of supervised release,
except that a defendant whose term is revoked under this paragraph may not be sentenced to a
term beyond five years if the instant offense was a Class A felony, three years for a Class B
felony, two years for a Class C or D felony, or one year for a Class E felony or a misdemeanor.
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In this case, Defendant was on supervision for a Class C felony; therefore, he may not be
required to serve more than two years imprisonment upon revocation.
Title 18 U.S.C. § 3583(e)(2) provides that if the Court finds that the defendant violated a
condition of supervised release, the Court may extend the term of supervised release if less than
the maximum term was previously imposed. In this case, the maximum term of supervised
release is life; therefore, the term can be extended.
Title 18 U.S.C. § 3583(h) and § 7B1.3(g)(2) of the United States Sentencing Guidelines
(“USSG”) provide that when a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment that is less than the maximum term of imprisonment
authorized, the Court may include a requirement that the defendant be placed on a term of
supervised release after imprisonment. The length of such a term of supervised release shall not
exceed the term of supervised release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment that was imposed upon
revocation of supervised release. In this case, the authorized statutory maximum term of
supervised release is life. The Court may impose the above-noted statutory maximum, minus the
term of imprisonment that is to be imposed for this revocation.
Section 7B1.1 of the USSG provides for three grades of violations (A, B and C).
Subsection (b) states that where there is more than one violation, or the violation includes more
than one offense, the grade of violation is determined by the violation having the most serious
grade.
Section 7B1.1(a) of the USSG provides that a Grade A violation constitutes conduct that
is punishable by a term of imprisonment exceeding one year, and that (i) is a crime of violence,
(ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive
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device, or any other offense punishable by a term of imprisonment exceeding twenty years.
Grade B violations are conduct constituting any other offense punishable by a term of
imprisonment exceeding one year. Grade C violations are conduct constituting an offense
punishable by a term of imprisonment of one year or less; or a violation of any other condition of
supervision. Section 7B1.3(a)(1) states that upon a finding of a Grade A or B violation, the
Court shall revoke supervision. Subsection (a)(2) states that upon a finding of a Grade C
violation, the Court may revoke, extend or modify the conditions of supervision. In this case,
Defendant has committed Grade A violations; therefore, the Court shall revoke supervision.
Should the Court find that the defendant has committed a Grade B or C violation, §
7B1.3(c)(1) states that where the minimum term of imprisonment determined under § 7B1.4 is at
least one month, but not more than six months, the minimum term may be satisfied by (a) a
sentence of imprisonment; or (b) a sentence of imprisonment that includes a term of supervised
release with a condition that substitutes community confinement or home detention according to
the schedule in § 5C1.1(e) for any portion of the minimum term. Should the Court find that the
defendant has committed a Grade B or C violation, § 7B1.3(c)(2) states that where the minimum
term of imprisonment determined under § 7B1.4 is more than six months but not more than ten
months, the minimum term may be satisfied by (a) a sentence of imprisonment; or (b) a sentence
of imprisonment that includes a term of supervised release with a condition that substitutes
community confinement or home detention according to the schedule in § 5C1.1(e), provided
that at least one half of the minimum term is satisfied by imprisonment. Neither provision
applies to this matter.
Pursuant to § 7B1.3(d), any restitution, fine, community confinement, home detention, or
intermittent confinement previously imposed in connection with the sentence for which
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revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered
to be paid or served in addition to the sanction determined under § 7B1.4 (Term of
Imprisonment), and any such unserved period of confinement or detention may be converted to
an equivalent period of imprisonment. There is no outstanding restitution, fine, confinement,
home detention, or intermittent confinement.
Section 7B1.4(a) of the USSG provides that the Criminal History Category is the
category applicable at the time the defendant was originally sentenced. In this instance,
Defendant had a Criminal History Category of I at the time of sentencing.
Should the Court revoke supervised release, the Revocation Table provided for in §
7B1.4(a) provides the applicable imprisonment range. In this case, Defendant committed a
Grade A violation and has a Criminal History Category of I. Therefore, the applicable range of
imprisonment for this violation is twelve to eighteen months.
Section 7B1.5(b) of the USSG provides that, upon revocation of supervised release, no
credit shall be given toward any term of imprisonment ordered, for time previously served on
post-release supervision.
III. 	ANALYSIS
On April 12, 2019, Defendant pleaded guilty to conspiracy to distribute and possess with
the intent to distribute fentanyl and cocaine and was sentenced to sixty months of incarceration
followed by three years of supervised release. Supervised release commenced on January 13,
2022, with a projected expiration on January 12, 2025.
Supervision did not go well. Within six months, in July 2022, Defendant tested positive
for fentanyl. On March 15, 2023, Defendant suffered an opioid overdose (Percocet) and was
transported to South County Hospital where he was administered Narcan and treated for alcohol
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intoxication. On March 21, 2023, Defendant again tested positive for fentanyl. The admitted
use of fentanyl in July 2022 and March 2023 is the basis for Violation No. 2.1
Far more serious is Violation No. 1, based on Defendant’s admitted conduct in May
2023. As described in Probation’s report, on May 16, 2023, Providence Police officers
approached Defendant and observed suspected narcotics in his left hand. As officers moved
closer to Defendant, he handed an officer a clear plastic bag containing seven smaller bags of
purple fentanyl and eight smaller bags of white fentanyl, a total of 23.5 grams of fentanyl. At
Defendant’s residence (where Defendant initially denied he was living), Providence Police found
and seized a Taurus handgun with fifteen live rounds; a FN 9X19 handgun (active stolen); three
more bags of fentanyl weighing 27.7 grams; $1,720 in cash; paperwork/photos of Defendant;
two digital scales; and bagging material.
Based on this troubling and extremely dangerous conduct committed in defiance of the
Court and its conditions, the government requests that I recommend twelve months of
incarceration to run consecutive to the State court incarcerative sentence followed by twenty-four
months of supervised release. Such a sentence falls at the bottom of the applicable guidelines
range and is consistent with the appliable guidelines principle:
Any term of imprisonment imposed upon the revocation of probation or
supervised release shall be ordered to be served consecutively to any sentence of
imprisonment that the defendant is serving, whether or not the sentence of
imprisonment being served resulted from the conduct that is the basis of the
revocation of probation or supervised release.
1 In support of his argument that Defendant suffers from serious substance addictions, Defendant’s counsel advised
the Court that, on April 14, 2023, Defendant was arrested and charged by the North Providence Police Department
for driving under the influence of alcohol and possession of marijuana. However, Defendant conceded that the use
of alcohol in this instance is not confirmed because Defendant refused a breathalyzer test. Further, the charge of
driving while impaired was dismissed.
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USSG § 7B1.3(f) (emphasis supplied); see United States v. Lopez, 985 F. Supp. 59, 65–66
(D.R.I. 1997) (punishment for a separate state offense serves a different purpose than punishment
for the violation of federal supervised release). The government argues that such a relatively
harsh sanction is necessary because the Court is not facing only Defendant’s personal use of
illegal drugs due to addictive disease (which Probation tried to address with treatment). Rather,
this case presents a Defendant who returned to the same criminal conduct for which he was
originally convicted – this time not only dealing in deadly fentanyl, but also possessing two
guns, one loaded, in connection with that activity. Such behavior not only places Defendant at
risk but also seriously endangers the community. The government contends that Defendant’s
violations are materially different from possession of a controlled substance by an individual
with addictive disease who has experienced a relapse. Defendant’s conduct – resuming the
business of conducting a drug sales operation from his home – amounts to a significant breach of
the Court’s trust and, consistent with the applicable guidelines, merits a punishment that is
distinct from the punishment he received from the State.
In rebuttal, Defendant contends that the fentanyl seized by Providence Police in May of
2023 was a relatively small amount, measured in “grams not ounces,” susceptible of
interpretation as for personal use, conduct caused by his addictions. Defendant argues that a
consecutive sentence is not merited because he has a substance abuse problem (involving opioids
and alcohol), which is a disease and not a “moral failing.” He asks the Court to impose a one-
year concurrent sentence, retroactive to his original arrest in May 2023, or in the alternative, a
seven-month term of incarceration retroactive to October 10, 2023. Such a sentence would likely
result in his release back on supervision at the same time as the expected termination of the
incarcerative portion of the State sentence. Effectively, Defendant’s proposal would result in
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almost no consequences for his admitted violations. On allocution, Defendant apologized to the
Court and to his family. He stated that he would like to return to society, his family and son and
procure proper treatment for addiction.
I do not adopt Defendant’s perspective that his admitted conduct is nothing more than a
relapse by an individual who needs not more jail, but more treatment for addictive disease.
Defendant’s argument in support of that proposition ignores that the facts presented here, which
unambiguously establish the operation of a business of selling a deadly drug, including the
digital scales, the cash, the baggies, and the bagged drugs found on arrest, coupled with
Defendant’s admissions to dealing (not simple possession) in this Court and in the State. The
fact that this drug dealing is a resumption of the precise conduct on which his original sentence
was based, this time supported by guns, compels the finding that supervision has not kept the
community safe from Defendant’s conduct, nor has it deterred Defendant from breaching the
Court’s trust by defiantly ignoring the Court’s conditions. I find that these circumstances require
a serious consequence, not one that merely piggy-backs the punishment imposed by the State.
To sufficiently address the breach of trust and protection of the community (including the
risk to Defendant himself of overdose and exacerbation of his condition), as well as to deter
Defendant from continuing this conduct, I recommend a low-end guidelines-based sentence as
the government recommends – twelve months of incarceration to be served consecutive to the
incarcerative sentence imposed by the State. Following Defendant’s release, I recommend that
the Court impose a term of twenty-four months of supervision, with the same conditions as
before. Such a two-year period of supervision is similar to (exceeding by just four months) the
term of supervision that was remaining when Defendant was arrested in May 2023.
IV. 	CONCLUSION
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After considering the appropriate factors set forth in 18 U.S.C. § 3553(a) and for the
reasons expressed above, I recommend the Court impose a sentence of twelve months of
incarceration to run consecutive to the incarcerative portion of Defendant’s State sentence. I
further recommend that the term of incarceration be followed by a twenty-fourth-month term of
supervised release. During the term of supervised release, I recommend that Defendant be
subject to the following conditions:
1. The defendant shall participate in a program of substance abuse treatment
(inpatient or outpatient), as directed and approved by the Probation Office.
2. The defendant shall participate in a program of substance abuse testing (up to
72 drug tests per year) as directed and approved by the Probation Office.
3. The defendant shall participate in a program of mental health treatment as
directed and approved by the Probation Office.
4. The defendant shall contribute to the cost of all ordered treatment and testing
based on ability to pay as determined by the probation officer.
5. The defendant shall permit the probation officer, who may be accompanied by
either local, state, or federal law enforcement authorities, upon reasonable
suspicion of a violation of supervision by possessing firearms, to conduct a search
of the defendant’s residence, automobile, and any other property under the
defendant's control or ownership.
Any objections to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen days of service of this report and
recommendation. See Fed. R. Civ. P. 72(b); DRI LR Cv 72. Failure to file specific objections in
a timely manner constitutes waiver of the right to review by the District Court and the right to
appeal the District Court's decision. See Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297
n.7 (1st Cir. 2017); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
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