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United States v. Pennington

United States District Court, W.D. Arkansas, Texarkana Division

September 13, 2016

UNITED STATES OF AMERICA, PLAINTIFF
v.
CHANNING PENNINGTON, DEFENDANT

          ORDER OF DETENTION

          HONORABLE BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         The record reflects that on August 1, 2016, the Defendant appeared for an initial appearance on a Petition for Action on alleged violations of Supervised Release. ECF No. 1735. The Petition alleged new criminal law violations, failure to report to the United States Probation Office (USPO) as directed, failure to be truthful to the USPO, failure to maintain employment, and failure to keep the USPO apprised of any change of address. Defendant was appointed counsel and waived a detention hearing. ECF No. 1741. Thereafter, Defendant requested a detention hearing and one was scheduled for September 12, 2016. As discussed below, I find the Defendant should be DETAINED pending a final revocation hearing.

         A. Standard for Release

         In any case involving a petition to revoke supervised release the court is governed by F.R.Cr.P. 32.1. Rule 32.1(a)(6) states:

Release or Detention. The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a)(1) pending further proceedings. The burden of establishing by clear and convincing that the person will not flee or pose a danger to any other person or to the community rests with the person [the defendant].

         The court must consider the factors set out in 18 U.S.C. § 3142 when making a detention decision under Rule 32.1. Unlike a pretrial proceeding, in a revocation proceeding, the defendant has the burden of establishing by clear and convincing evidence he is neither a risk of flight or a danger to others or the community.

         B. Detention Hearing

         The Government called United States Probation Officer Christie Constant. Ms. Constant testified regarding Defendant's failure to comply with all of the terms and conditions of his supervised release. Specifically, she testified regarding pending state criminal charges, in both Arkansas and Texas, wherein the Defendant is alleged to have possessed with intent to distribute controlled substances. She also testified regarding a recent allegation of domestic violence. The charge of domestic violence was ultimately dismissed by state authorities after the complaining witness recanted her statement.[1]

         The Government also relied on the USPO recommendation of no release pending a final hearing.

         The Defendant called no witnesses. Defense counsel proffered, the following facts:

1. Defendant was eligible to reapply for employment at Buffalo Wild Wings.
2. Defendant had in fact worked for Tyson's Inc. for a period of time.
3. One of the pending state charges for possession of a controlled substance could be charged as a misdemeanor rather than a felony.

         The undersigned reviewed the evidence and information submitted by the parties, the Indictment, the information and recommendation of the USPO, and the argument of counsel. ...


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