Opinion
Cr. No. 91-1129GT.
October 11, 2007
ORDER
On October 3, 2007, Defendant's, Luis Pomar ("Mr. Pomar), Motions for Discovery, Dismiss the Allegations, Decline to Impose Custody and Leave to File Further Motions came on for hearing before the Court. The Court has fully considered this matter including a review of the briefs filed, the arguments presented and the authorities cited therein. For the reasons stated below, with the exception of the Discovery motion, these Motions are DENIED.
BACKGROUND
On February 29, 1992, Mr. Pomar pled guilty to a one count Indictment charging him with Conspiracy to Possess with Intent to Distribute a Controlled Substance (approximately 483 kilograms of cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. On May 11, 1992, Mr. Pomar was sentenced to 140 months in prison and a five year supervised release. Probation's recommended guideline range was 235-293 months, with a sentence of 264 months in custody. Mr. Pomar's supervised release commenced on April 10, 2002.On March 25, 2004, Probation notified the Court that Mr. Pomar had violated the conditions of his supervised release by submitting numerous "dirty" drug tests, not attending drug aftercare, and not submitting monthly reports. The Probation Officer recommended the Court take no action because Mr. Pomar had begun a drug treatment program. The Court followed this recommendation.
On December 3, 2004, Probation again notified the Court that Mr. Pomar had violated several conditions of his supervised release. Mr. Pomar had been convicted for driving under the influence and failing to submit urine samples as required. Mr. Pomar waived a court hearing and agreed to the condition of 90 days home confinement with electronic monitoring. The Court agreed to this modification.
On September 7, 2005, Probation again notified the Court that Mr. Pomar had violated the conditions of his supervised release. The first five allegations were that Mr. Pomar violated the mandatory condition that he refrain from unlawful drug use. Two additional violations were that Mr. Pomar violated the special condition that he participate in a drug treatment program and submit to drug testing. A no-bail bench warrant was issued.
On November 5, 2005, Mr. Pomar admitted to allegation number 5, stating he had used cocaine. The Court revoked Mr. Pomar's supervised release and sentenced him to 9 months in custody and four years supervised release. (This four year term was later reduced to a three year term because Mr. Pomar appeared to be doing well.) Mr. Pomar's supervised release commenced on July 31, 2006.
On July 9, 2007, Probation once again informed the Court that Mr. Pomar had violated the terms of his supervised release. The Petition alleged that Mr. Pomar submitted urine samples which tested positive for cocaine and marijuana and failing to submit urine samples as required. Mr. Pomar was arraigned on the Petition and denied the allegations. Mr. Pomar has now filed several Motions for Discovery, to Dismiss the OSC and Leave to File Further Motions.
MOTIONS
A. Discovery Motion
Mr. Pomar requests several types of documents and information from Probation. The Court orders the parties to prepare and submit a joint order for this discovery. If there are any unresolved discovery issues, the Court will decide these matters at the next hearing.B. Dismiss Allegations for Insufficient Notice
C. Dismiss Allegations, § 3553 Factors not Considered
United Sates v. Ortuno-Higareda421 F.3d 917th Ortuna DENIED. See United States v. Mix457 F.3d 906911th DENIED. Apprendi Booker Blakely Apprendi Booker Blakely See United States v. Huerta-Pimental445 F.3d 12201221th See also United States v. Ray484 F.3d 11681172th DENIED. DENIED.
IT IS ORDERED that the parties prepare a joint order for discovery.
IT IS FURTHER ORDERED that Mr. Pomar's Motion to Dismiss Allegations for lack of Notice is DENIED. IT IS FURTHER ORDERED that Mr. Pomar's Motion to Dismiss Allegations because the Court did not consider that factors in § 3553 is DENIED. IT IS FURTHER ORDERED that Mr. Pomar's Motion for this Court to Decline Imposition of Custody is DENIED. IT IS FURTHER ORDERED that Mr. Pomar's request for Leave to File Further Motions is DENIED.
IT IS SO ORDERED.