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United States v. Richard has the Pipe

June 4, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICHARD HAS THE PIPE, DEFENDANT.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

Pending before the Court is Defendant's Notice of Appeal of Detention Order (Docket No. 235) and Motion for Release from Custody Pending Sentencing (Docket No. 237). The Court held a hearing on the appeal and motion for release on May 26, 2010. The Defendant testified and called his daughter as a witness regarding her need for a kidney transplant. The Government called United States Deputy Marshal Pete Thompson as a witness.

Having heard the testimony and argument of counsel, the Court orally denied the appeal and request for release and ordered the Defendant's counsel to determine if the transplant testing could be done in Pocatello. The Court indicated it would file a written order and for the reasons set forth below, the Court affirms the detention order imposed by Magistrate Judge Ronald E. Bush at the change of plea hearing held on May 7, 2010 (Docket No. 213) and denies the motion for release.

BACKGROUND

Defendant was charged in a Superseding Information (Docket No. 210) with possession with intent to distribute a mixture of substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Section 841(b)(1)(C) provides for a sentence of imprisonment of not more than twenty (20) years.

On May 7, 2010, Defendant entered a plea of guilty to the Superseding Information before Judge Bush. Because the offense arises under the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) and carries a maximum term of imprisonment of ten (10) years or more, Judge Bush ordered Defendant detained pursuant to 18 U.S.C. § 3143(a)(2) after finding that he could not meet the conditions for release set forth in that provision. Judge Bush concluded that he had no discretion to release Defendant although he indicated that he possibly would release him if he had the discretion.

Sentencing is set for July 27, 2010. Based on what he believes to be exceptional reasons, Defendant seeks review of the detention order pursuant to 18 U.S.C. § 3145(b) and release pending sentencing pursuant to § 3145(c). The Government, while not disputing the factual basis of Defendant's stated justifications for release, opposes release on the grounds that Defendant has not made the requisite showing.

STANDARD OF REVIEW

Review of a magistrate judge's detention order is de novo, but the district court "is not required to start over in every case, and proceed as if the magistrate's decision and findings do not exist." United States v. Koenig, 912 F.2d 1190, 1191-92 (9th Cir. 1990). The district court must make its own independent determination on the correctness of the magistrate's findings without deference to those findings. Id. In aid of that determination, the district court may conduct an evidentiary hearing whether or not new evidence is offered that was not before the magistrate. Id. at 1193. Finally, the district court's final decision on the detention issue is to be made without deference to the magistrate's decision. Id.

DISCUSSION

A. Applicable Statutes

Section 3143(a)(2) provides:

The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless --

(A)(I) the judicial officer finds there is a substantial likelihood that a motion for acquittal or ...


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