United States District Court, D. South Dakota, Western Division
Cory Tobacco, Defendant: Terry L. Pechota, LEAD ATTORNEY,
Rapid City, SD.
USA, Plaintiff: Kathryn Rich, Ted L. McBride, LEAD ATTORNEYS,
U.S. Attorney's Office (Rapid City, SD), Rapid City
Office, Rapid City, SD.
ORDER DENYING DEFENDANT'S APPEAL OF DETENTION
L. VIKEN, CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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."
(Docket 78 at p. 2).
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
of 18 U.S.C. § 3143(a)(2). Id. at pp. 3-4.
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 ." (Docket 85 at p.
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 ...