DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The defendant, Michael A. Haggins, was charged in a Petition for Offender Under Supervision, filed on May 9, 2013 (the "Petition"), with two charges of violating a mandatory condition of his supervised release requiring that he "not commit another federal, state or local crime." The Petition charges defendant Haggins with: (1) Obstruction of Breathing with intent to impede normal breathing in violation of New York Penal Law § 122.11.a; and, (2) Unlawful Imprisonment in violation of New York Penal Law § 135.05. Both New York Penal Law offenses are misdemeanors.
The charges in the Petition allege that, on May 9, 2013, defendant Haggins choked a female while sitting on her chest. Based upon evidence offered during a violation hearing, and for the reasons stated below, the Court finds that the defendant knowingly choked Latasha Davenport with intent to impede her normal breathing and that he knowingly restrained Ms. Davenport while doing so. The Court therefore finds the defendant guilty of Charges 1 and 2 of the Petition.
A Judgment in a Criminal Case against defendant Haggins reflecting a September 19, 2005 sentencing was filed on October 3, 2005. Dkt. No. 217. The defendant had been adjudged guilty after a plea to the offense of Conspiracy to Possess with Intent to Distribute 50 Grams or More of Cocaine Base in violation of 21 U.S.C. § 846. Id. For that offense, the defendant faced a mandatory-minimum sentence of 120 months and a maximum of life imprisonment. He was sentenced to a term of imprisonment of 140 months to be followed by five years of supervised release.
Defendant Haggins' September 19, 2005 sentence included, as a Condition of Supervised Release, the following mandatory condition:
The defendant shall not commit another federal, state or local crime.
Dkt. No. 217, p. 3. The defendant's five-year term of supervised release began on August 19, 2011.
A violation hearing pursuant to Fed. R. Crim. P. 32.1(b)(2) was held June 18, 2013 and lasted approximately one hour. The parties gave oral summations at the close of the evidence.
The Court evaluates the evidence offered to establish a violation of supervised release by a standard of the preponderance of the evidence. 18 U.S.C. § 3583(e)(3); Johnson v. United States, 529 U.S. 694, 700 (2000). While conducting the hearing and reviewing the evidence presented at the hearing, the Court is mindful that the Federal Rules of Evidence are not applicable in revocation proceedings. Fed.R.Evid. 1101(d)(3). Certainly, however, the Federal Rules of Evidence are a useful guide to help the Court to make findings supported by "verified facts" and by "accurate knowledge." United States v. Bari, 599 F.3d 176, 179 (2d Cir. 2010) ( quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
During the violation hearing on June 18, 2013, the government introduced the testimony of Latasha Davenport, Town of Tonawanda Police Officer Michael G. Lewandowski, and U.S. Probation Officer Tammi S. Rogers. Defendant Haggins testified on his own behalf and called no other witnesses. After carefully observing the witnesses' demeanor and testimony, considering the exhibits admitted into evidence, and applying the preponderance of the evidence standard of proof, the Court finds the following facts.
After midnight on May 9, 2013, in the bedroom of Latasha Davenport's apartment at 584 Englewood Avenue, Tonawanda, New York, the defendant, Michael A. Haggins, got into a heated argument with Ms. Davenport. The argument escalated to a physical struggle during which defendant Haggins sat astride Ms. Davenport's chest, with his hands around her throat, choking off her breathing, while Ms. Davenport tried to free herself.
Defendant Haggins lived with his mother and brother on Sanders Road, in Buffalo, New York, but he and Ms. Davenport were in an intimate relationship, and he would sometimes stay with her at her apartment on Englewood Avenue. On May 9, 2013, the defendant and Ms. ...