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United States v. Penson

United States District Court, W.D. North Carolina, Asheville Division

July 3, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
GORDIE LEROY PENSON, Defendant.

ORDER

MARTIN REIDINGER, UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court upon the Defendant’s “Notice of Appeal” [Doc. 21] and the Defendant’s “Request for Review of Detention Order” [Doc. 22].

I. PROCEDURAL BACKGROUND

On February 4, 2015, the Defendant was charged in a Bill of Indictment with committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [Doc. 1]. The Defendant’s initial appearance was held before the Honorable Dennis L. Howell, United States Magistrate Judge, on April 17, 2015, at which time the Government requested detention. A detention hearing was scheduled for May 4, 2015.

At the detention hearing, the Government proffered the Pretrial Services report, outlining the Defendant’s criminal history, for consideration by the Court. Te Defendant presented the testimony of his wife, Rachel Qualls Penson, who indicated that she was willing to serve as a third party custodian for the Defendant. Defense counsel also argued for the Defendant’s release under certain conditions, including electronic monitoring. Upon conclusion of the hearing, Judge Howell granted the Government’s request for pretrial detention and ordered the Defendant detained. A Detention Order was entered on June 17, 2015 [Doc. 15], and an Addendum to that Order was entered on June 24, 2015 [Doc. 20].

On June 23, 2015, the Defendant’s counsel moved to withdraw from further representation of the Defendant. [Doc. 18].[1] While that motion was still pending, the Defendant’s counsel filed this appeal [Doc. 22]. The Court also received a pro se “Notice of Appeal” from the Defendant seeking review of the Court’s Detention Order on the same day [Doc. 21].

II. STANDARD OF REVIEW

Title 18 of the United States Code, section 3145, governs the review and appeal of detention orders. This statute provides, in pertinent part, as follows:

If a person is ordered detained by a magistrate judge, ... the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.

18 U.S.C. § 3145(b). In reviewing a motion to revoke or amend an order of detention, the Court reviews the Magistrate Judge’s Order de novo. United States v. Stewart, 19 F. App’x 46, 48 (4th Cir. 2001). The Court “must make an independent determination of the proper pretrial detention or conditions of release.” Id.

III. ANALYSIS

Section 3142 of Title 18 of the United States Code provides that if, after holding a hearing, the Court finds that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, ” the Court shall order the detention of the person pending trial. 18 U.S.C. § 3142(e)(1). There is a presumption of detention, rebuttable by the defendant, if the Court finds that there is probable cause to believe that the defendant committed certain enumerated offenses. See 18 U.S.C. § 3142(e)(3).

In determining whether detention pending trial is appropriate, the Court must consider the following factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled ...

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