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United States v. Smith

United States District Court, Ninth Circuit

June 11, 2013

United States of America, Plaintiff,
v.
Roger Leo Smith, Defendant.

REPORT AND RECOMMENDATION

JACQUELINE M. RATEAU, Magistrate Judge.

This matter was referred to the Magistrate Judge to conduct an evidentiary hearing on the Government's Petition to Revoke Supervised Release filed on April 29, 2013. The Petition asserts that the Defendant used marijuana and methamphetamine on April 5, 2013, and marijuana, methamphetamine and cocaine on April 12, 2013.[1] An evidentiary hearing was conducted on June 11, 2013. One witness was presented by the Government, United States Probation Officer Scott Reardon. Defendant Smith was present and represented by counsel. He testified in his own defense.

I. Findings of Fact

On April 3, 2013, Defendant was sentenced to 12 days (time served) followed by 36 months of supervised release for conspiracy to transport illegal aliens for profit. Among the conditions of the Defendant's supervised release were that he refrain from using any controlled substances. Defendant was released from prison on April 3, 2013, and on April 5, 2013, reported to the probation office. A drug test was administered and the Defendant tested positive for amphetamine, methamphetamine and THC. (Exhibits 1, 8). The Defendant admitted to having used the substances. (Exhibit 2). On April 12, 2013, the Defendant submitted another urine sample which tested positive for amphetamine, methamphetamine, cocaine and THC. The Defendant admitted to "ingesting marijuana and methamphetamine by smoking" and stated that "cocaine could have been mixed with the marijuana or methamphetamine." (Exhibit 6).

II. Conclusions of Law

Having considered the pleadings, exhibits, testimony, and the arguments of counsel, the Magistrate Judge finds by a preponderance of the evidence that the Defendant violated his conditions of supervised release. United States v. Musa, 220 F.3d 1096, 1100 (9th Cir.), cert. denied, 531 U.S. 999 (2000); 18 U.S.C. § 3583(e)(3). The Magistrate Judge recommends that the District Court, after an independent review of the record, grant the Government's Petition to Revoke Supervised Release and set the matter for disposition hearing.

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within 10 days after being served with a copy of this Report and Recommendation. If objections are not timely filed they may be deemed waived. The parties are advised that any objections filed are to be identified with the following case number: CR 12-2497-TUC-JGZ.


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