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United States v. Tobacco

United States District Court, D. South Dakota, Western Division

December 18, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
CORY TOBACCO, Defendant

          For Cory Tobacco, Defendant: Terry L. Pechota, LEAD ATTORNEY, Rapid City, SD.

         For USA, Plaintiff: Kathryn Rich, Ted L. McBride, LEAD ATTORNEYS, U.S. Attorney's Office (Rapid City, SD), Rapid City Office, Rapid City, SD.

Page 1052

          ORDER DENYING DEFENDANT'S APPEAL OF DETENTION ORDER

         JEFFREY L. VIKEN, CHIEF UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Pending before the court is the defendant's appeal of the decision of Magistrate Judge Daneta Wollmann requiring detention of the defendant pending sentencing. (Docket 85). Mr. Tobacco argues exceptional circumstances pursuant to 18 U.S.C. § 3145 exist to allow Mr. Tobacco to remain free on bond pending sentencing. (Dockets 85 & 91). The government resists the defendant's appeal motion. (Docket 89). For the reasons stated below, the defendant's motion is denied.

         DISCUSSION

         On September 3, 2015, Mr. Tobacco entered into a plea agreement with the government. (Docket 72). The court referred the case to Magistrate Judge Wollmann for receiving a plea and issuing a report and recommendation as provided by 28 U.S.C. § 636(b)(1). (Docket 75). On September 18, 2015, Mr. Tobacco appeared before Magistrate Judge Wollmann for a change of plea hearing. (Docket 76). Following the hearing, Magistrate Judge Wollmann filed a report and recommendation. (Docket 78). Both the government and Mr. Tobacco consented to the plea hearing before the magistrate judge and waived the 14-day time period to file any objections to the report and recommendation. Id. at p. 1.

         At the hearing and after having been advised of his constitutional and statutory rights, Mr. Tobacco pled guilty to the superseding indictment charging conspiracy to distribute controlled substances in violation of 21 U.S.C. § § 846, 841(a), and 841(b)(1)(A). Id. at pp. 1-2. The penalties applicable to that offense are: a minimum of ten years in prison up to life; a $10,000,000 fine; or both; five years up to life of supervised release; five additional years' imprisonment if supervised release is revoked; a $100 special assessment; and restitution. Id. at p. 2; see also 21 U.S.C. § 841(b)(1)(A). Magistrate Judge Wollmann recommended Mr. Tobacco's " guilty plea to the Superseding Indictment [be] accepted . . . . and the defendant be adjudged guilty of that offense." [1] (Docket 78 at p. 2).

         During the September 18 hearing, the magistrate judge heard the parties on the issue of bond pending sentencing. (Docket 83 at p. 1). Mr. Tobacco made an oral motion before the magistrate judge to permit him to be released pending sentencing. Id. On September 22, 2015, Mr. Tobacco filed a motion for release pending sentencing. (Docket 79). The government opposed the defendant's motion. (Docket 80). The magistrate judge entered an order of detention. (Docket 83). The magistrate judge found Mr. Tobacco's plea to conspiracy to distribute a controlled substance in violation of 21 U.S.C. 841(b)(1)(A) is an offense which " falls under 18 U.S.C. § 3142(f)(1)(C), as an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act." Id. at p. 2. The magistrate judge found no exceptional circumstances existed which removed Mr. Tobacco from the mandatory detention provisions

Page 1053

of 18 U.S.C. § 3143(a)(2). Id. at pp. 3-4.

         Mr. Tobacco appeals to the district court asserting he is " the father of a seriously ill child who resides in Rapid City with the child's mother. He has a good relationship with the mother and child. He also is the grandson of an individual who needs his help to provide care. . . . [and he] is not a danger to the community or to himself or anyone else." (Docket 85 at p. 1). In a supplemental filing Mr. Tobacco asserts he has " lived a meretricious relationship with Brandi Twiss, who resides in Rapid City, South Dakota. They have one daughter who is 6 years old. His daughter has lupus and must travel to Denver once a month for treatment. Brandi does not have a driver's license and struggles to find funds to travel to Denver and back each month. Defendant would like the Court to know that he would like to help Brandi travel to and from Denver each month and to work to provide support of his daughter." (Docket 91 at p. 1). Mr. Tobacco " submits that his situation constitutes exceptional circumstances and asks the Court to review the decision of the Magistrate and allow him release pending sentencing in January [2016]." (Docket 85 at p. 1).

         The government resists defendant's motion. (Docket 89). The government argues " [t]he fact that defendant has had state charges dropped, wants to work, and would like to care for a family member do not rise to ...


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