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United States v. McKethan

United States District Court, E.D. North Carolina, Western Division

July 21, 2017

UNITED STATES OF AMERICA,
v.
ANTWAINE D. MCKETHAN, Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on defendant's appeal (DE 47) of the court's judgment entered April 13, 2017, upon sentencing determination by United States Magistrate Judge Robert T. Numbers, II (the “magistrate judge”). Defendant filed a memorandum in support of appeal, the government filed a response, and defendant filed a reply. In this posture, the issues raised are ripe for ruling. For the following reasons, the judgment is affirmed.

         BACKGROUND

         On August 7, 2013, the government filed a three-count criminal information against defendant charging defendant with operating a motor vehicle in February 2013 within the special maritime and territorial jurisdiction of the United States 1) while impaired, in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-138.1 (count one); 2) while his driver's license was suspended, in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-28(a) (count two); and 3) in excess of the posted speed limit in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-141(e) (count three).

         The government filed a superseding criminal information on May 8, 2014, charging defendant with those offenses plus one additional driving while impaired offense committed in October 2013 in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-138.1 (superseding count four); and one additional driving while license suspended offense in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-28(a) (superseding count five). On May 6, 2015, the government filed a second superseding information which listed the same charges as the first superseding information.

         On June 1, 2016, defendant consented to proceed before the magistrate judge and pleaded guilty to second superseding counts one and four, with remaining counts dismissed by the government. A pretrial services report pertinent thereto noted that, at that time, defendant had two additional convictions in state court for driving while impaired, for separate incidents in March and April, 2014. (See DE 19). The court sentenced defendant to a term of 12 months probation, with conditions of probation including prohibition on operating a motor vehicle, prohibition from consuming alcohol, and confinement in the custody of the Bureau of Prisons for a period of 30 days for each count to run consecutive as arranged by the probation office. In addition, the court imposed a special assessment of $50.00 and a fine of $8, 000.00, to be paid during the term of probation.

         On January 24, 2017, at the request of the probation office and with defendant's consent, the court extended the term of probation to November 30, 2017. On March 13, 2017, the probation office moved for revocation of probation, alleging that defendant committed criminal conduct, including driving while impaired; failed to abstain from the use of alcohol; and failed to pay his monetary obligation.

         On April 12, 2017, defendant appeared for revocation hearing and sentencing, at which the defendant pleaded no contest to the alleged violations of criminal conduct and failure to abstain, as well as admitted that he failed to pay monetary obligations. The government presented testimony of a North Carolina state trooper who testified to the violation conduct. The magistrate judge heard argument from the government and the defendant as to sentencing, with the government recommending a sentence of ten months imprisonment and defendant asking the court to “consider a sentence of something like six months in custody.” (Tr. 14).[1] The magistrate judge invited defendant to make a statement, which defendant did. The magistrate judge then pronounced the decision of the court and sentence as follows:

All right. The Court finds as fact that the defendant, Antwaine D. McKethan, has violated the terms and conditions of the judgment imposed by the Court by engaging in additional criminal conduct, failing to refrain from excessive abuse of alcohol, and failing to pay monetary obligations. The defendant has failed to adjust to the conditions of supervision by continuing to consume alcohol and to operate a motor vehicle while on probation.
In this it appears he -- he certainly has four convictions for DWIs in the past several years and appears to have substantial evidence in support of a fifth conviction against him. These actions create a significant and ongoing danger to the community and to the defendant himself.
Therefore, it's ordered and adjudged that the supervision term heretofore granted is revoked. The defendant is ordered committed to the custody of the Bureau of Prisons or its authorized representative for a period of ten months.
It's further ordered that the balance of the financial imposition originally imposed be due in full immediately.
Mr. McKethan, I know that these sort of addictions are difficult to deal with. You clearly have a very serious problem, and it's quite fortunate that you have not seriously harmed yourself or anyone else.
Your daughter deserves better. You deserve better from yourself. Your family deserves better from you. It's very hard to overcome these problems, and I hope that over the course of the next several months, as you're in the custody of the Bureau of Prisons, you can find a way to overcome this, and that when you get out you can additionally ...

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