USA v. Strickland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOHNNY-LEE PRESTON BURK,
Defendant.
Case No. 3:15-cr-00088-JMK
ORDER ADOPTING REPORT AND
RECOMMENDATION
Before the Court at Docket 339 is a Petition for Warrant for Person Under
Supervised Release (the “Petition”). The Petition was referred to the Honorable Magistrate
Judge Matthew M. Scoble. 	At Docket 367, Judge Scoble issued his Final Report and
Recommendation, in which he recommended that Mr. Burk be found in violation of the
single allegation in the Petition. Mr. Burk filed objections at Docket 373. The Government
did not respond.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”1 	A court is to “make a de
novo determination of those portions of the [magistrate judge’s] report or specified
1 28 U.S.C. § 636(b)(1)(C).
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 1 of 6

United States v. Burk 	Case No. 3:15-cr-00088-JMK-MMS
Order Adopting Report and Recommendation 	Page 2
proposed findings or recommendations to which objection is made.”2 But as to those topics
on which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”3
Mr. Burk’s objections are divided into three sub-arguments. First, Mr. Burk
argues he only was required to submit to one drug test within the first 15 days of supervised
release pursuant to 18 U.S.C. § 3583(d), thusly making his second and third tests outside
of the probation officer’s authority.4 Second, Mr. Burk asserts his current challenge to the
Petition to Revoke Supervised Release does not negate or alter Special Condition #1.5
Lastly, Mr. Burk argues that United States v. Garcia, 522 F.3d 855 (9th Cir. 2008), supports
his interpretation of § 3583(d).6
The applicable statutory language of 18 U.S.C. § 3583(d) states:
The 	court 	shall 	also 	order, 	as 	an 	explicit 	condition 	of
supervised 	release, 	that 	the 	defendant 	refrain 	from 	any
unlawful use of a controlled substance and submit to a drug test
within 15 days of release on supervised release and at least 2
2 Id.
3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v.
Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”).
4 Docket 373 at 1–3.
5 Id.at 4. Mr. Burk’s second point heading states “Burk was not required to object to the
court[’]s imposition of him having to take up to 12 drug tests (maximum) a month[.]” Docket 373
at 4. Mr. Burk clarifies that he does not object to the imposition of Special Condition #1, but rather
its application during his period of supervised release. 	The Court interprets Mr. Burk’s point
heading in the context of United States v. Garcia, 522 F.3d 855, 860 (9th Cir. 2008) (reviewing a
drug testing condition under a plain error standard of review, because of the lack of objection at
sentencing). 	This standard of review does not apply to Mr. Burk’s argument in this procedural
context.6 Id. at 4–5.
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 2 of 6

United States v. Burk 	Case No. 3:15-cr-00088-JMK-MMS
Order Adopting Report and Recommendation 	Page 3
periodic drug tests thereafter (as determined by the court) for
use of a controlled substance.
Thus, Section 3583(d) sets a statutory minimum for drug testing a defendant on supervised
release. 	In United States v. Garcia, the Ninth Circuit examined whether a district court
committed plain error by failing to explicitly set a maximum number of non-treatment
related drug tests for a defendant as a condition of supervised release.7 Unequivocally, the
Ninth Circuit held “that district courts that seek to impose more than the statutory minimum
of three drug tests must explicitly do so at sentencing.”8
There is no ambiguity in supervised release conditions set by the court. By
statute, the sentencing court must impose one drug test to be performed within 15 days of
release and two subsequent tests.9 Judge Gleason did so in Mandatory Condition #3, which
provides, “[y]ou must submit to one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter, as determined by the court.”10 Judge Gleason
also adopted Special Condition #1 as part of her sentence, which requires that “[i]n addition
to urinalysis testing that may be part of a formal drug program, the defendant shall submit
up to 12 urinalysis tests per month.”11 	Therefore, Mandatory Condition #3 satisfies the
statutory minimum set by § 3583(d) and Special Condition #1 sets a non-treatment
maximum in accordance with United States v. Garcia and United States v. Stephens.12
7 522 F.3d 855 (9th Cir. 2008).
8 Id. at 861.
9 See 18 U.S.C. § 3583(d).
10 Docket 206 at 3.
11 Id. at 5.
12 Garcia, 522 F.3d at 861; United States v. Stephens, 424 F.3d 876, 883 (9th Cir. 2005)
(holding that a district court erred when it failed to state the maximum number of non-treatment
drug tests a probation officer could impose and impermissibly delegated the district court’s
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 3 of 6

United States v. Burk 	Case No. 3:15-cr-00088-JMK-MMS
Order Adopting Report and Recommendation 	Page 4
The Court finds that Mr. Burk’s argument regarding the propriety of his third
scheduled drug test lacks merit. Special Condition #1, in accordance with § 3583(d) and
the Ninth Circuit precedent, specifically states “the defendant shall submit up to 12
urinalysis a month.”13 Mr. Burk contends that: (1) he fulfilled the statutory requirement
of one test within the first 15 days; (2) his second test on day six of supervised release was
“excessive and outside of the P.O.s authority[;]” and (3) therefore, his third test is invalid
and illegal and the illegality of this test nullifies his alleged violation of supervised
release.14 	The Court notes that Mr. Burk’s legal argument is both novel and creative.
However, Mr. Burk advances a statutory interpretation that is untethered to the language
of the statute, not supported by controlling precedent, and logically is inconsistent with the
purpose of supervised release.
First, the plain language of § 3583(d) neither implies nor supports that only
one test may occur during the first 15 days of supervised release. Second, Section 3583(d)
requires “at least two periodic tests thereafter (as determined by the court) for use of a
controlled substance.” This language permits a sentencing court to subject a defendant to
periodic testing after the first test. The statute also sets a minimum for testing that could
be—and was—increased by Judge Gleason.
statutory duty to a probation officer); see also United States v. Smith, 561 F.3d 934, 942 (9th Cir.
2009) (remanding for resentencing a defendant’s conditions of supervised release, because the
district court did not state the maximum number of drug tests defendant was required to take).
13 Docket 206 at 5.
14 Docket 373 at 2–4.
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 4 of 6

United States v. Burk 	Case No. 3:15-cr-00088-JMK-MMS
Order Adopting Report and Recommendation 	Page 5
Furthermore, in Garcia, the Ninth Circuit re-confirmed its holding in United
States v. Stephens—that a sentencing court has “the responsibility of stating the maximum
number of tests to be performed or to set a range for the permissible number of tests.”15
Applying that holding and in light of the Government’s concession to that specific
defendant, the Ninth Circuit instructed the defendant’s condition was implicitly limited to
three tests in accordance with § 3583(d).16 	Mr. Burk focuses on a single sentence of the
Ninth Circuit’s application of that principle: “[Defendant] must submit to at least and at
most ‘one drug test within 15 days of release from imprisonment and . . . two periodic drug
tests thereafter.’”17 	However, Mr. Burk ignores the next two sentences: 	“Should the
probation office believe more drug tests are necessary, it would have to request a
modification from the district court. 	Any such modification would of course have to
comply with Stephens.”18 The Ninth Circuit did not comment on the timing of those tests.
Placed in proper context, Garcia does not support Mr. Burk’s argument.
Lastly, as a practical matter, Mr. Burk’s argument creates an unworkable
supervisory scheme. 	Mr. Burk asserts that his first test, taken upon reporting to the
probation office on the first day of his release, entitled him to a 14-day “grace period” from
drug testing. 	If this statutory interpretation and logic applied, this would send a message
to all defendants on supervised release that, after an initial drug test, they can freely use
controlled substances without risk of testing until their “grace periods” expire. This does
15 Garcia, 522 F.3d at 861; quoting Stephens, 424 F.3d at 883.
16 Garcia, 522 F.3d at 861.
17 Id.
18 Id.
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 5 of 6

United States v. Burk 	Case No. 3:15-cr-00088-JMK-MMS
Order Adopting Report and Recommendation 	Page 6
not logically comport with the intent of supervised release or § 3583(d), which mandates
urinalysis drug testing. As Magistrate Judge Scoble reasoned during the September 2, 2022
Evidentiary Hearing, Special Condition #1 requires that Mr. Burk “shall submit” to testing.
This requires Mr. Burk to submit to urinalysis testing as mandated by statute and the
Judgment in this case at the direction of a probation officer.
Magistrate Judge Scoble recommended that that Mr. Burk be found in
violation of the single allegation in the Petition for Warrant for Person Under Supervised
Release. The Court has reviewed the September 2, 2022, Evidentiary Hearing and the Final
Report and Recommendation and agrees with its analysis. 	18 U.S.C. § 3583(g)(3)
mandates that a district court “shall revoke” a defendant’s term of supervised release for
refusal to comply with drug testing as an imposed condition of supervised release.
Accordingly, the Court adopts the Final Report and Recommendation at Docket 339, and
IT IS ORDERED that Mr. Burk’s Supervised Release is REVOKED. Mr. Burk currently
has an imposition of sentence set for November 4, 2022, at 2:30 p.m.
IT IS SO ORDERED this 3rd day of November, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
Case 3:15-cr-00088-SLG Document 379 Filed 11/03/22 Page 6 of 6