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In re Burch

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 19, 2009

OFFENDER NAME: EDMUND BURCH

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

SUPERSEDING PETITION FOR WARRANT OR SUMMONS FOR OFFENDER UNDER SUPERVISION

Original Sentence Date: 06/14/2006

Original Offense: 18 USC 922(g)(1) - Felon in Possession of a Firearm

(CLASS C FELONY)

Original Sentence: 57 months Bureau of Prisons; 3-year term of supervised release; $100 special assessment.

Special Conditions: Drug/alcohol testing and treatment; Abstain from alcohol; Pay special assessment; Search.

Type of Supervision: Supervised Release

Supervision Commenced: 08/07/2008

Assistant U.S. Attorney: Daniel McConkie Telephone: (916) 554-2700

Defense Attorney: Mary French Telephone: (916) 498-5700

Assistant Federal Defender

Other Court Action:

01/16/2009: Court took judicial notice of defendant's violations, namely use of marijuana, failure to report for drug testing, and submitting diluted urine specimens. Probation officer's plan approved.

02/25/2009: Petition filed in Northern District of California alleging use of marijuana, failure to report for drug testing, and failure to follow instructions of the probation officer. Warrant issued.

03/02/2009: Defendant arrested in the Eastern District of California, arraigned on violation petition, and detained pending hearing.

03/03/2009: Defendant released from custody on motion of the government pending further proceedings. Ordered to participate in an inpatient substance abuse treatment program, as directed by the probation officer for up to 90 days and to abstain from the use of alcohol. Status hearing set before the magistrate for March 24, 2009, at 2 p.m., regarding the parties' efforts to transfer jurisdiction from the Northern District of California.

03/11/2009: Jurisdiction ordered transferred from the Northern District of California (Case number CR 04-00277-01 CRB) to the Eastern District of California.

PETITIONING THE COURT

(X) OTHER: To place the matter on the Court's calendar of March 27, 2009, at 9 a.m., for arraignment on the superseding petition. The probation officer is directed to notify the defendant and counsel of the date and time of said hearing.

The probation officer alleges the offender has violated the following condition(s) of supervision:

Charge Number Nature of Violation

Charge 1: UNLAWFUL USE OF A CONTROLLED SUBSTANCE

On or about the following dates, the defendant unlawfully used marijuana, in violation of the general prohibition against unlawful drug use and as indicated by urine specimens: December 2, 2008, January 7, 16, and 28, 2009, February 23 and 26, 2009, and March 2, 2009.

Charge 2: FAILURE TO PARTICIPATE IN A DRUG TESTING PROGRAM, AS

DIRECTED BY THE PROBATION OFFICER

On or about the following dates, the defendant failed to participate in a drug testing program, as directed by the probation officer, in that he failed to report for scheduled drug testing, in violation of Special Condition number 3: December 9 and 11, 2008; January 26, 2009, and February 18 and 22, 2009.

Charge 3: FAILURE TO FOLLOW THE INSTRUCTIONS OF THE PROBATION OFFICER

On January 5 and 26, 2009, the offender failed to report to the probation office's weekly Intermediate Sanction Program group, as he had been previously directed by the probation officer, a violation of Standard Condition number 3.

Justification: This superseding petition is intended to replace the violation petition filed February 25, 2009, in Northern District of California under Case No. CR 04-00277-01 CRB. On March 2, 2009, the defendant was arrested in the Eastern District of California and arraigned before a magistrate in this district. He was released from custody March 3 on condition he participate in and reside at a residential substance abuse treatment program, as directed by the probation officer. The matter is set for a status hearing before the magistrate on March 24, allowing the parties time to explore a transfer of jurisdiction which subsequently was approved by the sentencing judge in San Francisco.

The superseding petition charges four additional uses of marijuana, as indicated by positive drug test results and two additional "No Shows" for drug testing. The defendant's testing record indicates more than three uses of marijuana during a period of less than 12 months. Therefore, the mandatory revocation provisions of 18 USC 3583(g)(4), as well as the exception for treatment outlined at 18 USC 3583(d) apply.

Bail/Detention: The defendant remains in a structured residential treatment program and has been responsive to increased supervision since his March 3, 2009, release pending further proceedings. Therefore, it is recommended that the matter be set on the Court's calendar of March 27, 2009, and that the probation officer be directed to notify the defendant and counsel of the hearing. Neither a warrant nor a summons are recommended at this time.

I declare under penalty of perjury that the foregoing is true and correct.

EXECUTED ON: March 17, 2009

THE COURT FINDS PROBABLE CAUSE AND ORDERS:

( ) The issuance of a warrant ( ) Bail set at $( ) No Bail

( ) The issuance of a summons (copy to Defense Counsel).

(X ) Other: To place the matter on the Court's calendar of March 27, 2009, at 9 a.m., for arraignment on the superseding petition. The probation officer is directed to notify the defendant and counsel of the date and time of said hearing.

FURTHER PROCEEDINGS REGARDING CUSTODY:

( ) Defendant is ordered detained, to be brought before District Judge forthwith.

( ) Initial appearance and detention hearing before Magistrate Judge.

Your Honor:

In addition to a copy of the Acknowledgment of Conditions of Probation or Supervised Release and Receipt of Criminal Judgment and Judgment and Commitment Order, the following evidence and/or testimony will be offered to support the probation officer's allegation that the above-named releasee is in violation of the conditions of supervision as stated on the attached Probation Form 12C - Petition for Warrant or Summons for Offender Under Supervision.

Charge 1: UNLAWFUL USE OF A CONTROLLED SUBSTANCE

A. Evidence:

(1) Kroll Laboratory chain of custody form and laboratory report for specimen number C01252809 for specimen taken December 2, 2008, and testing positive for THC.

(2) Kroll Laboratory chain of custody form and laboratory report for specimen number C01252826 for specimen taken December 15, 2008, and indicating positive for THC.

(3) Kroll Laboratory chain of custody form and laboratory report for specimen number C01171292 for specimen taken December 19, 2008, and testing positive for THC.

(4) Kroll Laboratory chain of custody form and laboratory report for specimen number C01171427 for specimen taken January 7, 2009, and testing positive for THC.

(5) Kroll Laboratory chain of custody form and laboratory report for specimen number C01171576 for specimen taken January 16, 2009, and testing positive for THC.

(6) Kroll Laboratory chain of custody form and laboratory report for specimen number C01248593 for specimen taken January 28, 2009, and testing positive for THC.

(7) Kroll Laboratory chain of custody form and laboratory report for specimen number C01248757 for specimen taken February 23, 2009, and testing positive for THC.

(8) Kroll Laboratory chain of custody form and laboratory report for specimen number C01248814 for specimen taken February 26, 2009, and testing positive for THC.

(9) Kroll Laboratory chain of custody form and laboratory report for specimen number C01188743 for specimen taken March 2, 2009, and testing positive for THC.

B. Witnesses:

(1) Senior United States Probation Officer John A. Poglinco, the undersigned, will testify that on December 15, 2008, after being confronted by the undersigned with drug test results showing four diluted specimens submitted November 16, 19, 24, and December 5, 2008, the defendant admitted having used marijuana three times.

Further, that after being admonished to cease marijuana use, the defendant continued repeated uses as indicated by negative drug test results for specimens taken on January 27 and February 19, 2009, in-between positives for specimens taken January 16 and 28 and February 23, 2009.

(2) An expert from Kroll Laboratory would testify that the pattern of drug test results suggest repeated marijuana use of at least three times or more.

Charge 2: FAILURE TO PARTICIPATE IN A DRUG TESTING PROGRAM, AS

DIRECTED BY THE PROBATION OFFICER

A. Evidence:

(1) The Effort "No Show" notices for December 9 and 11, 2008, and January 26, February 18 and 22, 2009, reporting the defendant's failure to show for drug testing on those dates.

(2) Urine collection procedures form signed by the defendant and witnessed by the undersigned on August 11, 2008, describing procedures for reporting to the testing center program.

B. Witnesses:

(1) Senior United States Probation Officer John A. Poglinco, the undersigned, will testify that the urine collection procedures described on the form above were reviewed in detail with the defendant on August 11, 2008. Further, that the defendant was repeatedly reminded regarding the importance of reporting for all scheduled drug tests.

(2) Staff at The Effort testing center program will testify that on the above-noted dates, the defendant failed to report for scheduled drug testing.

Charge 3: FAILURE TO FOLLOW THE INSTRUCTIONS OF THE PROBATION

OFFICER

A. Evidence:

(1) None.

B. Witnesses:

(1) Senior United States Probation Officer John A. Poglinco, the undersigned, will testify that on February 15, 2009, in response to defendant's repeated submissions of diluted urine specimens, his first positive drug test, and admission of drug use, he was instructed to report to the probation office's weekly Intermediate Sanction Program group. Further, that the sentencing judge in San Francisco was apprised of this instruction as an appropriate response to the initial violation conduct. Finally, that on January 5 and 26, 2009, the defendant failed to report to the Intermediate Sanction Program group and failed to provide satisfactory explanations for his absence.

DATED: March 17, 2009

Date of original offense: 06/19/2006

Original term of supervised release imposed: 3 years.

Highest grade of violation alleged: C

Criminal History Category of offender: IV

Chapter 7 range of imprisonment: 6 to 12 months

Maximum term on revocation - 18 USC 3583(e)(3): (choose one below)

Class A felony - 5 years (or stat max of years if longer)

Class B felony - 3 years X Class C and/or D felony - 2 years

Class E felony and misdemeanors: 1 year

Violation requires mandatory revocation: YES: X NO:

Original offense committed after 09/13/94: Court may sentence up to the statutory maximum term of supervised release applicable to the original offense of conviction, but not exceed the maximum for the classes of offenses noted above. Court must consider but is not bound by Chapter 7 ranges. Upon revocation, the court may re-impose supervised release; however, the term is limited to the statutory maximum authorized under Title 18 USC 3583(e)(3) for the original offense of conviction, less the term of imprisonment imposed upon revocation.

MANDATORY REVOCATION ISSUES

Original offense committed after 09/13/94: Title 18 USC 3583 instructs that supervision shall be revoked upon a finding of: 1) Possession of a controlled substance; 2) Possession of a firearm; or, 3) Refusal to comply with mandatory drug testing. If the violation involves the use of a controlled substance, the Court has the discretion to find that "use" constitutes "possession."

Positive/Failed Drug Tests after 11/02/2002: Title 18 USC 3583(g) amended and instructs that supervision be revoked for: Testing positive for illegal controlled substances more than three times over the course of one year.

20090319

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