Opinion
1:22-CR-259-DAE
07-26-2024
United States of America v. Vernon Dimayuga
ORDER GRANTING DEFENDANT'S MOTION FOR RELEASE PENDING FURTHER PROCEEDINGS
SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
The above-named defendant was arrested and made an Initial Appearance before the Court on the Government's Petition for Warrant or Summons on Offender under Supervision on July 12, 2024, and his Preliminary Revocation Hearing was set for July 26, 2024. Dkt. 14. On July 25, 2024, Defendant filed a Motion for Release Pending Further Proceedings. Dkt. 17. By Text Order entered July 26, 2024, the District Court referred the Motion to a United States Magistrate Judge for resolution, pursuant to 28 U.S.C. § 636(b)(1)(A).
This Magistrate Judge held a hearing on July 26, 2024, at which Defendant, his attorney, counsel for the Government, and Defendant's Probation Officer were present. Defendant waived his Preliminary Revocation Hearing, and the Court heard evidence and argument on his Motion for Release.
Federal Rule of Criminal Procedure 32.1(a)(6) provides that a magistrate judge may release or detain a person held in custody for violating supervised release under 18 U.S.C. § 3143(a)(1) pending further proceedings. Rule 32.1(a)(6) further provides that: “The burden of establishing by clear and convincing evidence that the person will not flee or pose a danger to any other person or to the community rests with the person.”
Having considered all evidence and arguments presented, this Magistrate Judge finds that Defendant has met his burden to establish by clear and convincing evidence that he will not flee or pose a danger to any other person or to the community if released pending his Final Revocation Hearing. The Petition alleges that Defendant violated Standard Condition No. 7 of his conditions of supervised release, requiring him to refrain from use of any controlled substance, nine times since October 11, 2023, the eight most recent violations for marijuana use. Dkt. 7 at 2. Otherwise, Defendant has been in compliance with his conditions of release since his supervision commenced on October 21, 2022, and his most recent test result was negative. Defendant presented evidence that his partner is experiencing a high-risk pregnancy, that he was actively seeking employment when he was arrested, and that his chronic marijuana use began after a car wreck.
For these reasons, the Court ORDERS that Defendant be released pending his Final Revocation Hearing. Defendant's release is subject to ALL Conditions of Supervised Release imposed by United States District Judge Kathleen Cardone and Senior United States District Judge David A. Ezra of the United States District Court for the Western District of Texas, including but not limited to:
Standard Condition No. 2: The defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer.
Standard Condition No. 5: The defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons.
Standard Condition No. 7: The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician
Additional Condition: The defendant shall reside in a residence approved in advance, by the probation officer. Any changes in the residence must be pre-approved by the probation officer.
In addition, the Court ORDERS that Defendant shall abide by the following Condition of Release pending his Final Revocation Hearing:
The defendant shall participate in the Location Monitoring Program, which will include remote location monitoring using Active Global Positioning Satellite (GPS) tracking. You shall abide by the rules and regulations of the Participant Agreement Form. During this time, you will remain at your place of residence except for employment and other activities approved in advance by your Probation Officer. You will maintain a telephone at your place of residence without “caller ID,” “call forwarding,” “call waiting,” “call back/call block,” a modem or a portable cordless telephone for the above period as directed by the Probation Officer. At the direction of the Probation Officer, you shall wear a transmitter and be required to carry a tracking device. You shall pay all or part of the costs of the program based on the ability to pay as directed by the Probation Officer.
IT IS SO ORDERED.