United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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.
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).
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.
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.
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.
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.
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