United States District Court, W.D. North Carolina, Asheville Division
DENNIS L. HOWELL, Magistrate Judge.
THIS CAUSE coming before the undersigned upon a Violation Report (#21) filed in the above entitled cause on May 29, 2014 by the United States Probation Office. In the Violation Report, the United States Probation Office alleges that Defendant had violated terms and conditions of her pretrial release. At the call of this matter on for hearing it appeared that Defendant was present with her counsel, Mary Ellen Coleman, and the Government was present through Assistant United States Attorney, David Thorneloe. From the evidence offered and from the statements of the Assistant United States Attorney and the attorney for the Defendant, and the records in this cause, the Court makes the following findings.
Findings: At the call of the matter, the Defendant, by and through her attorney, denied the allegations contained in the Violation Report. Testimony was then presented by the Government through Robert T. Ferguson, United States Probation Officer.
The Defendant was charged in counts one and three in a bill of indictment (#1) filed on August 6, 2013 with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 846 and was further charged in count two with being in possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(1). A hearing was held in regard to the detention of Defendant on March 26, 2014. On that date, the undersigned entered an Order releasing Defendant on a $25, 000 unsecured bond. The undersigned further set conditions of release which included the following:
(1) Defendant shall not violate any federal, state or local law while on release.
(8)(p) Defendant is to refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner.
(8)(r) Defendant must participate in a grogram of inpatient or outpatient substance abuse therapy and counseling if the pretrial services office or supervising officer considers it advisable.
During the period from May 1, 2014 through May 6, 2014 a substance abuse sample was collected from the Defendant through Sweat Patch Analysis. On May 16, 2014, the laboratory verified that the Defendant has tested positive for the use of methamphetamine. The Defendant failed to report for substance abuse treatment on May 22, 2014. The Defendant had reported to her probation officer that she could not attend treatment due to a lack of transportation.
Discussion. 18 U.S.C. § 3148(b)(1) provides as follows: The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer _____
(1) finds that there is____
(A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or
(B) clear and convincing evidence that the person has violated any other condition of release; and
(2) finds that ___
(A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to ...