USA v. Strickland et al

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHNNYLEE BURK,
Defendant.
Case No. 3:15-cr-00088-03-SLG-MMS
FINAL REPORT AND
RECOMMENDATION RE
PETITION TO REVOKE
SUPERVISED RELEASE (DKT.
339)
I. 	Introduction
Following the September 2, 2022, evidentiary hearing on the petition to revoke
supervised release at Docket 339, this court determined that the government had met its
burden of demonstrating by a preponderance of the evidence that the defendant had
committed the violation alleged in the petition at Docket 339. 	The court stated its reasons
for so finding on the record.
II. 	Analysis
At the conclusion of the September 2 hearing, the defendant asked for, and was
granted, the opportunity to file a post-hearing brief. 	Both the defendant and the
government timely filed post hearing briefs at Dockets 364 and 362, respectively. 	In his
post-hearing brief, the defendant makes the imaginative argument that his two supervision
conditions that require drug testing are mutually limiting, not additive. 	The defendant
does not dispute that he was ordered to “submit to one drug test within 15 days of release
from imprisonment, and at least two periodic drug tests thereafter” (Dkt 206, 364).
Further, he does not dispute that he was additionally required by Judge Gleason, as a
condition of supervision, to submit “up to 12 urinalysis tests per month” (Dkt 206). 	The
defendant argues that the first condition creates an upper limit to the number of tests that
can be imposed within that 15-day window, stating without authority, that he may not be
required to submit more than one test with the first 15 days of his supervision. 	Dkt 362.
This argument, while creative and earnestly made, is unavailing. There is nothing
in these two testing requirements that indicates that they should not be read in the
conjunctive. 	In other words, the first condition, that he submit to one drug test within 15
days of release creates a minimum, not a maximum, number of tests. 	The defendant cites
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United States v. Garcia1, apparently on the belief that it supports his argument. 	It does
not. 	Garcia makes clear that the condition which requires “one drug test with 15 days of
release from imprisonment and at least two periodic drug tests thereafter…” sets a
minimum number of tests which may be required of a defendant. 	Id. at 860. 	Garcia goes
on to state that a court may not delegate the authority to set a maximum number of tests to
the probation officer. 	Id. 	Here, Judge Gleason did not delegate this authority to the
probation officer, rather the special condition of supervision imposed by the court explicitly
sets an upper limit of “up to 12 urinalysis tests per month”. 	Dkt 206.
Moreover, as the government correctly observes, assuming arguendo that the
defendant’s position is correct, when a defendant agrees to conditions at the time of
sentencing, he or she effectively waives any future arguments that the conditions are
unconstitutional or violate statutory authority. 	United States v. Janko, 865 F. 2d 1246,
1247 (11 th Cir. 1989).
III. 	Conclusion
For the reasons set forth above, and on the record following the evidentiary hearing,
this court makes the Report and Recommendation that the defendant be found in violation
of the single allegation in the Petition for Warrant for Person Under Supervised Release
(Dkt 339).
DATED at Anchorage, Alaska, this 20th day of September 2022.
/s/ Matthew M. Scoble
MATTHEW M. SCOBLE
Chief United States Magistrate Judge
1 522 F.3d 855 (9th Cir., 2008)
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