United States District Court, W.D. Virginia, Harrisonburg Division
Glen E. Conrad, Senior United States District Judge.
case is presently before the court on defendant Rogelio
Garcia's pro se motion requesting that the court either
dismiss an outstanding warrant for alleged violations of
supervised release or hold a revocation hearing in his
absence. For the following reasons, the motion will be
1, 2004, Garcia entered a plea of guilty to conspiracy to
distribute cocaine and marijuana. He was sentenced to a term
of imprisonment of 110 months, to be followed by a four-year
term of supervised release.
was released from incarceration and began serving his term of
supervised release in July of 2012. He was subsequently
deported to Mexico. On October 24, 2013, Garcia was arrested
in the Southern District of California and charged with
improper entry by an alien, in violation of 8 U.S.C. §
1325. He entered a plea of guilty to that charge and was
sentenced to a term of imprisonment of 24 months. Garcia
completed the sentence of imprisonment in August of2015.
August 6, 2015, Garcia's probation officer in this
district petitioned to revoke Garcia's supervised release
on the basis that he had violated the condition that he not
commit another federal, state, or local crime. Garcia
appeared before this court for a revocation hearing on
September 9, 2015. At that time, the court revoked
Garcia's supervised release and sentenced him to a term
of imprisonment of 12 months, to be followed by a 12-month
term of supervision.
the completion of his term of imprisonment in August of 2016,
Garcia was once again deported to Mexico. On April 6, 2017,
he was arrested a second time in the Southern District of
California for illegally reentering the United States. On May
4, 2017, Garcia waived his right to indictment by a grand
jury and pled guilty to a felony information charging him
with illegal reentry by a removed alien, in violation of 8
U.S.C. § 1326. He was sentenced to a term of
imprisonment of 30 months, which he is currently serving.
time of his arrest in April of 2017, Garcia remained subject
to the conditions of supervised release imposed by this court
on September 9, 2015. His probation officer filed a petition
for issuance of a warrant asserting that Garcia had violated
his conditions of supervised release by illegally reentering
the United States. The court issued the warrant on April 10,
2017. The warrant remains lodged as a detainer while Garcia
completes the 30-month term of imprisonment imposed by the
Southern District of California. Records from the Federal
Bureau of Prisons indicate that Garcia is scheduled to be
released from incarceration in November of 2019.
April 30, 2018, Garcia filed the instant motion to dismiss
the supervised release violation warrant. Alternatively,
Garcia requests that the court hold a supervised release
revocation hearing in his absence and order that any sentence
of imprisonment imposed upon revocation run concurrently with
the sentence he is currently serving for the illegal reentry
support of the pending motion, Garcia cites to Rule 32.1 of
the Federal Rules of Criminal Procedure, which sets forth the
procedural requirements for revoking or modifying conditions
of supervised release. Rule 32.1 states, in pertinent part,
that "a person held in custody for violating probation
or supervised release must be taken without unnecessary delay
before a magistrate judge" for an initial appearance.
Fed. R Crim. P. 32.1(a). The rule further provides that
"[i]f a person is in custody for violating a condition
of probation or supervised release, a magistrate judge must
promptly conduct a hearing to determine whether there is
probable cause to believe that a violation occurred."
Fed. R Crim. P. 32.1(b). Unless waived, the court must then
hold a revocation hearing "within a reasonable time in
the district having jurisdiction." Id.
reliance on Rule 32.1 is misplaced. As indicated above, the
rule applies only to individuals held in custody for
violating probation or supervised release. See Fed. R. Crim.
P. 32.1(a)(1)-(b)(1)(A). Thus, "Rule 32.1 is triggered
only when the defendant is taken into federal
custody for violations of supervised release, "
and not by the mere issuance of a detainer or warrant for the
defendant's arrest. United States v. Cunningham,
150 Fed.Appx. 994, 996 (11th Cir. 2005) (emphasis in
original); see also United States v. Chaklader, 987
F.2d 75, 77 (1st Cir. 1993) (holding that the requirements of
Rule 32.1 were not triggered until the defendant was
"finally taken into federal custody to answer for
violations of the conditions of his probation").
case, there has been no event triggering the procedural
requirements of Rule 32.1. Garcia has never been taken into
custody on the outstanding warrant for violating the
conditions of his supervised release. Instead, since April of
2017, Garcia has been held in custody on the basis of the
illegal reentry offense to which he ultimately pled guilty in
the Southern District of California, Consequently, Garcia is
not yet entitled to any of the hearings required under Rule
32.1, and there has been no violation of that rule.
Garcia has not alleged, much less established, that he will
be prejudiced by delaying the revocation hearing until after
he completes the term of imprisonment imposed by the Southern
District of California. If this court ultimately revokes
supervised release, it "will still have the power... to
grant the equivalent of a concurrent sentence
retroactively." United States v.
Escobar-Izaguirre, No. 2:09-cr-00110, 2011 U.S. Dist.
LEXIS 84997, at *14 (N.D. Ind. Aug. 1, 2011) (citing
United States v. Lone,823 F.2d 1209, 1212 (7th Or.
1987) (noting that "[d]istrict judges, within statutory
constraints, have wide discretion in fashioning
sentences")); see also United States v.
Sanchez,225 F.3d 172, 176 (2d Cir. 2000) (affirming the
district court's decision that the defendant was not
prejudiced by the delay in conducting a revocation hearing
"because the district court had the power to grant the
equivalent of a concurrent sentence retroactively for [the
defendant's] violation of supervised release"). The
court will also have ...